1.

GENERAL OVERVIEW AND PRELIMINARY MATTERS

a. The Sources of Criminal Law
i. Parliament (federal government) is allowed to enact/make criminal law legislation.
1. R v. Lloyd [2016]: Parliament has the sole power to enact criminal prohibitions and determine
their punishments.
ii. However, provinces can manage criminal law when it comes to issues relating to investigating and
prosecuting criminal offenses.
iii. The Criminal Code prevents the common law from establishing criminal offences (leads to the law being
unclear).
1. A common law defence is duress, which exists both in statute under s. 17 of the Criminal Code
AND under the common law.
2. Frey v Fedoruk [1950]: This case considered whether being a "peeping tom" was a crime.
a. "Peeping was not otherwise criminal and not falling within any category of offences
defined by the Criminal Law". Thus, Parliament didn't define peeping as a crime.
b. If he was to acknowledge this as a crime, this would lead to many actions that were
legal to become criminal in nature.
c. Lead to unclear/arbitrary law: citizens MUST KNOW WHAT THE LAW IS.
3. R v Jobidon [1991]: Consent When in A Fight (i.e., Fist Fight).
a. Jobidon claimed that the offence of assault was not applicable because both the parties
to consented to engaging in the fight.
b. Assault has to be interpreted with the common law in mind.
c. A person CANNOT consent to death, or to violent force that is not reasonable conduct
(i.e., unreasonable) in the circumstances.
iv. Criminal Legislation: Parliament (federal) creates all criminal offences via statutes (statute of Parliament).
b. The Power to Create Criminal Offences and Rules of Criminal Procedure
i. Constitutional Division of Powers: Criminal law is under the exclusive legislative jurisdiction of the
Parliament of Canada.
ii. Power is specifically derived from the Constitution: section 91(27).
iii. Provinces and territories do have the authority to prosecute crimes.
iv. Criminal trials take place in provincial courts.
v. Jurisdiction over correctional institutions is divided between the two levels of government.
1. Under s. 91(28), the federal Parliament has jurisdiction over “penitentiaries”, which hold
offenders sentenced to imprisonment for two years or more.
2. Under s. 92(6), the provinces have jurisdiction over “prisons”, which hold offenders sentenced to
imprisonment for less than two years.
vi. R v Malmo-Levine [2003]: Parliament does not need to establish harm but instead, only a reasonable
apprehension of harm.
1. Criminal law power includes the protection of vulnerable groups.
2. Thus, the government can control activities for the protection of drug users and society
(government should decide how drug-related causes should be punished).
vii. The Canadian Charter of Rights and Freedoms: Criminal law must adhere to the Charter.
viii. If a criminal law breaches or violates a Charter right, then it will be declared invalid and as such, will be of
no force or effect.
1. Caveat to this rule is the Oakes Test, section 1 of the Constitution = legally allows the
government to limit an individual’s Charter rights if it is reasonable and demonstrably
justified.
2. R v Oakes [1986]: CREATED THE OAKES TEST.
a. Charter rights are not absolute and can be infringed in the Courts if they determine that
the infringement is reasonably justified.

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 b. Only the values of a free and democratic society would suffice and be adequate to limit
the guaranteed rights (limiting religious freedom to carry around a gun because
possession of a gun is a violation of the and must be prohibited to ensure safety).
3. R v Labaye [2005]: Labaye owned a club where people could pay membership fees to engage in
various forms of group sex.
a. All sexual interactions were consensual and although they paid membership fees, they
were not paying each other in exchange for sex.
b. The harm in indecency must be serious:
i. “Indecency in Canadian law is something that threatens someone’s liberty,
exposes something undesirable to people, forces someone to commit a
misdeed, or harms someone engaging in certain acts”.
c. The court found no evidence of harm because Labaye’s actions were not indecent and
the people who engaged in this sexual conduct did so willingly.
c. The Procedural Classification of Offences
i. Three categories of offences: (1) summary, (2) indictable, and (3) hybrid
ii. Summary = for less serious crimes
1. Examples: solicitation of prostitution, road traffic offences (unlicensed driving).
2. 1 year statute of limitations.
iii. Indictable = for more serious of crimes
1. Examples: murder, terrorism, robbery, treason, drug trafficking, rape.
2. If you are charged with an indictment, you have the right to choose your mode of trial:
a. Judge Alone (with or without a preliminary hearing)
b. Provincial Court
c. Superior Court
d. Jury Trial (with or without a preliminary hearing)
iv. Hybrid = the Crown my choose to proceed with a summary OR indictable offense (this is dependent on the
seriousness of the crime and the harm caused).
1. Examples: include simple assault, sexual assault and theft (less than $5000).
2. 1 year statute of limitations if the Crown chooses to proceed summarily.
v. Section 553 (Absolute Jurisdiction Offenses) of the CC: an accused has not choice of the mode of trial
when charged with an absolute jurisdiction offense.
1. ONLY tried by a provincial court judge
2. Examples: theft (other than theft that is less than $5000), obtaining money or property by false
pretences, gaming and betting-related offences (sections 201-210), fraud in relation to fares,
breach of recognizance, and failure to comply with probation order.
d. Interpreting Criminal Provisions (Purposive Approach vs. Strict Construction)
i. The Purposive Approach: is a tactic to statutory and constitutional interpretation.
1. It involves common law courts interpretation of an enactment, such as a statue or clause, within
the context and framework of the law’s purpose.
2. R. v. Sundman [2022]: the accused assaulted the victim while trapped in a truck and when he
escaped and ran away the accused and two other accomplices ran after him, shot at him and he
died. The accused was charged with first degree murder.
3. SCC Held: the accused was guilty of first-degree murder because the victim was still unlawfully
confined when he escaped from the truck and ran for his life. Even though the victim was not
physically restrained outside the truck, he continued to be coercively restrained through violence,
fear, and intimidation. The accused then murdered him while unlawfully confining him.
a. This was a continuous sequence of events forming a single transaction (as opposed to
the trial judge: confinement + murder)
4. Rule: Section 231(5) of the Criminal Code provides that murder is first degree murder,
irrespective of whether the murder is planned and deliberate, when the victim’s death is caused
“while committing or attempting to commit” any of several listed crimes of domination.

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 a. For a murder to be committed “while committing or attempting to commit” an
underlying offence listed in s. 231(5), the following elements are required:
i. (1) an underlying crime of domination;
ii. (2) murder; (3) substantial cause;
iii. (4) no intervening act; and
iv. (5) the same transaction.
b. Single Transaction Approach: if the offence of domination and the killing all form part
of one continuous sequence of events forming a single transaction, leading to murder.
c. Temporal & Causal Connection Approach: whether the underlying offence of
domination and the murder have a close temporal and causal connection.
i. There is a temporal connection between an underlying offence of domination
and a murder when the two criminal acts are committed close together in
time.
ii. There is a causal connection when the offender’s reason or motivation for the
killing arises from, or is linked to, the offender’s unlawful domination of a
victim.
ii. Strict Construction: a strict view of the words within statutes. The words are given a strict interpretation –
a judge interprets the text as it is written, considering and contemplating only what is presented before him.
1. R v Pare [1987]: “the doctrine of strict interpretation must not contradict a purposive
interpretation that considers the scheme and purpose of the legislation. Interpretations cannot
lead to arbitrary or irrational outcomes”.
2. Whitely v Chappel: statute made it an offence “to impersonate any person entitled to vote”. The
defendant used the vote of a dead man. The statute specifically required a person to be living in
order to be entitled to vote. The strict construction approach was applied, and the defendant was
thus acquitted.
3. R v Harris: the defendant bit off the victim’s nose. But because the statute made it an offence “to
stab cut or wound” the court held the act of biting did not fall under the meaning of stab cut or
wound as these words implied an instrument had to be used (strict construction approach). The
defendant’s conviction was overturned.
iii. Fundamental Principle of Statutory Interpretation: “Direct that the words of a statute be read in their
entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the
object of the Act, and the intention of the legislature” (Rizzo & Rizzo Shoes Ltd. And R v Brode).
iv. Official Languages Act: “Ambiguity in the wording of one language may be resolved by considering
whether the other language wording provides clarity before considering other principles of interpretation”
(R v Mac).
1. “Where the meaning of the English and French versions diverges, the proper interpretation
should be the lowest common denominator” (R v Daoust).
v. The Charter: It requires that the rights granted in the Charter be given a generous and liberal
interpretation (the purposive approach).
1. The Charter should be read broadly and expansively.
2. If a law violates a Charter right, it is invalid and will be struck down, UNLESS, as discussed earlier,
it can be saved by section 1 (Oakes Test).
vi. Canadian Foundation for Children, Youth & the Law v. Canada (A.G.) [2004]:
1. Section 43 of the CC justifies the reasonable use of force by way of correction by parents and
teachers against children in their care. The appellant argued that that s. 43 violates ss. 7, 12 and
15(1) of the Charter.
vii. Held: While s. 43 adversely affects children’s security of the person, it does not offend a principle of
fundamental justice. Section 43 permits only corrective force that is reasonable.
1. Section 43 is Parliament’s attempt to accommodate both of these needs. It provides parents
and teachers with the ability to carry out the reasonable education of the child without the
threat of sanction by the criminal law.

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 2. The decision not to criminalize such conduct is not grounded in devaluation of the child, but in a
concern that to do so risks ruining lives and breaking up families — a burden that in large part
would be borne by children and outweigh any benefit derived from applying the criminal process.
2. THE ELEMENTS OF A CRIMINAL OFFENCE
a. All elements of the criminal offence must be present at the same time. If they are not, there will be no crime (R v
Williams)
i. “The physical elements or actus reus of the offence; and
ii. The mental or mens rea elements of the offence”.
b. The Actus Reus
i. The actus reus quite simply is the specific act of the offence (i.e., applying force in assault).
ii. Some offences spell out the act required for the actus reus component/element for the crime to be
committed.
iii. Example: theft – “everyone commits theft who fraudulently and without... a) to deprive, temporarily or
absolutely…”
1. The actus reus is TO DEPRIVE
iv. Must look at the criminal code to determine what the necessary actus reus (act) is required for an offence
to be committed.
1. Example: Assault with a weapon involves committing an assault with a weapon – “uses or
threatens to use a weapon”. If a weapon is not involved in the crime, then the accused cannot be
charged with “assault with a weapon”.
2. This is a necessary component of the actus reus of this specific offence.
v. Possession: “The Act of Possession”
1. Knowledge (R v York)
2. Consent (R v Marshall)
3. Control (R v Terrance)
a. Need all three to fulfill the necessary actus reus of the crime of possession.
b. R. v. Morelli [2010]: Accused accessed adult and child pornography. Was not charged
with possession of child pornography because one must knowingly acquire the
underlying data files and store them in a place under one’s control. The above three
elements were not found.
vi. Consent: necessary actus reus in mainly sexual assault offences.
vii. R. v. J.A. [2011]: A person can only consent to sexual activity if they are conscious throughout that
specific activity. If a person becomes unconscious at any point during the sexual act, then they are not
capable of legally providing consent. This holds true regardless of if they consented earlier in time to the
sexual act.
1. Consent must be given FREELY and not through coercive means.
viii. R. v. Mabior [2021]: failure to disclose that one has HIV may constitute fraud vitiating consent to sexual
relations.
1. The test has two elements:
a. a dishonest act (either falsehoods or failure to disclose HIV status); and
b. deprivation (denying the complainant knowledge which would have caused him or her
to refuse sexual relations that exposed him or her to a significant risk of serious bodily
harm).
c. Failure to disclose may amount to fraud where the complainant would not have
consented had he or she known the accused was HIV-positive, and where sexual
contact poses a significant risk of or causes actual serious bodily harm.
ix. Causation: causation is a necessary actus reus element that must be met to move onto mens rea of
component.
1. Where an offence requires a specific consequence (i.e. assault causing bodily harm – without
bodily harm, it cannot be assault causing bodily harm; it would just be assault. Bodily harm is a
necessary consequence of the assault in order for this specific crime to occur).

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 x. If you see the word “causing” within the offence, you know you must address causation.
xi. Causation involves 2 components: factual causation and legal causation.
1. Factual causation focuses on whether factually (based on the evidence at hand) something
occurred.
2. If the act of the accused is too remote = no causation
a. Exception – intervening cause: an act that occurs between the accused’s initial
conduct and the victim’s death, which may sever the accused’s responsibility (and
cause) for the death.
3. “Legal causation is focused upon asking whether the accused should be held responsible and
accountable in law” = blameworthiness of the accused.
4. R v Nette: causation is the ‘causal relationship between the defendant’s conduct and end
result’... it is defined as the actus reus (an action) from which the specific injury or other effect
arose.
a. First determine whether there is factual causation and if that is yes, move on to legal
causation to determine the blameworthiness of the accused.
5. R v Williams [2003]: W learned that he tested HIV-positive. Did not inform his partner. Partner
would not have knowingly had sexual relations with a HIV-positive person. W conceded that he
had infected his partner. Crown conceded that it is quite possible that W infected the complainant
before learning of his positive status.
6. Held: Crown argued that W could not have exposed his partner to a significant risk of harm
because she was likely, already HIV-positive. Therefore, W’s acquittal on the charge of aggravated
assault must be affirmed.
a. However, the Crown was only able to prove the mens rea (no mental intent to
endanger) but not the actus reus.
b. The court held that “before November 15, 1991, there was an endangerment but no
intent; after November 15, 1991, there was an intent but reasonable doubt about the
existence of any endangerment”.
7. R v Maybin [2012]: T and M repeatedly punched the victim in the face and head, which left the
victim unconscious. A bar bouncer then also struck the victim in the head. No evidence to
conclude which blow lead to the victim’s death and thus both the accused brothers and the bar
bouncer were acquitted.
8. Appeal Court: the accused’s assaults were factually a contributing cause of death — “but for”
their actions, the victim would not have died.
a. The majority of the Court of Appeal concluded that the risk of harm caused by the
intervening actor could have been reasonably foreseeable to the accused.
b. The appeals were allowed, acquittals set aside, and a new trial ordered.
9. Held – Trial Judge: the appeal was dismissed. An intervening act that is reasonably foreseeable
to the accused may well not break the chain of causation, and that an independent and
intentional act by a third party may in some cases make it unfair to hold the accused responsible.
10. Here, it was open to the trial judge to find that the bouncer’s act was closely connected in time,
place, circumstance, nature and effect with the accused’s acts and the effects of the accused’s
actions were still exisiting and not spent at the time the bouncer acted.
11. Therefore, it was concluded that the general nature of the intervening act and the accompanying
risk of harm were reasonably foreseeable; and that the act was in direct response to the
accused’s unlawful actions.
xii. Omissions and Duties: Some offences do not necessitate a positive action by the accused. Instead, the
offence may be committed by demonstrating the accused FAILED to do an act.
1. Example: where a parent is taking care of a child (duty to care for child) and has FAILED to do
the act of taking care of the child (s. 215: preservation of life).

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 xiii. In order to be found guilty of an omission (s. 217: undertaking acts), the three following conditions must
be fulfilled:
1. The offence must contemplate guilt for omission;
2. The accused MUST BE placed under a legal duty to act;
3. The omission must be a failure to fulfil that legal duty.
xiv. R v Peterson: Peterson was convicted of failing to provide the necessaries of life to his father, thereby
endangering his father’s life (s. 215).
1. Section 215(1) I: A duty to provide the necessaries of life arises when “one person is under the
other’s charge, is unable to withdraw from that charge, and is unable to provide himself or herself
with necessaries of life”.
a. Exception: financial inability to take care of the vulnerable person.
2. Test under Peterson:
a. Relationship: if the parent is disabled and dependant on independent adult-child then
the duty to take care of the parent is justified.
b. Charge: whether the adult-child comprehended their duty to take care of another.
3. R v Browne: two friends (drug dealers) got stopped by the police. One friend swallowed the
drugs to avoid detection. The other friend told him he would take him to the hospital but instead
sent him by taxi.
4. Held: the statement was not legally binding; didn’t create legal duty.
c. Subjective Mens Rea:
i. “An act does not make a person guilty unless the mind is also guilty” (mens rea not required for absolute
and strict liability offenses).
1. The court must be satisfied that the accused actually had the requisite mental element present in
HIS OR HER MIND at the relevant time.
ii. Subjective mens rea key words: intent, intention, knowledge, purpose, recklessness, willful blindness.
iii. When determining if a person should be convicted, identifying whether there is subjective/objective mens
rea is critical.
iv. Example: H and W push each other around, H pushed W too hard, and she falls down, hits her head and
dies. Is H likely to convicted for first degree murder?
1. Actus Rea: murder must result in death – H actions led to death.
2. Subjective Mens Rea: murder requires planning and deliberation – H did not have this and thus
did not have the mental intent to commit murder. Can only be convicted for manslaughter
(objective mens rea).
v. Intention, Purpose, Wilfulness:
vi. Intention = subjective mens rea (such as murder).
vii. Intention includes intent and motive.
1. Motive = desire or reasons for committing an offence.
2. Intent = willingness to execute a specific act.
viii. R v Hibbert [2012]: Principal offender (PO) forced the accused to accompany him to the victim’s
apartment and lure him outside.
1. The accused watched while the PO shot the victim. The accused was charged with attempted
murder; however, he was acquitted but convicted on the included offence of aggravated assault.
The Court of Appeal upheld the convicted. He appealed.
ix. Held: A person who commits a criminal act does so as a result of threats of death or bodily harm can, in
some instances, be relevant to the question of whether he possessed the mens rea necessary to commit an
offence.
1. Whether or not the mental state specified by Parliament in its definition of the offence is such
that the presence of coercion can, as a matter of logic, have a bearing on the existence of
mens rea.
2. The accused can prove the presence of threats when arguing the mental state required for
liability then this will be relevant to the conviction.

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 3. The motive behind the person’s action, be it to avoid being harmed by the principal or to protect
a loved one whom the principal is threatening to harm, is of no concern.
x. Regina v. Buzzanga and Durocher [1979]: This case was about offensive pamphlets that were published;
the authors were charged with wilful promotion of hatred.
xi. Held: The term “willfully” can sometimes encompass recklessness as well as intention it implies with the
intention of promoting hatred and DOES NOT include recklessness.
xii. Subjective Mens Rea with Objective Features:
1. Touching a woman’s back at work has both objective and subjective mens rea.
2. Did he “intend” to touch her; was the touching sexual from an objective standpoint.
a. If he subjectively intended the act, then he will be liable.
b. There is an objective feature – regardless, what he thinks, this touching is deemed to
be of a sexual nature.
3. R. v Chase [1987]: sexual assault case.
a. The test to be applied in determining whether the impugned conduct has the requisite
sexual nature is an objective one:
i. “Viewed in the light of all the circumstances, is the sexual or carnal context of
the assault visible to a reasonable observer”.
b. There was ample evidence before the trial judge upon which he could find that sexual
assault was committed. Viewed objectively in the light of all the circumstances, it is clear
that the conduct of the respondent in grabbing the complainant’s breasts constituted
an assault of a sexual nature.
4. Knowledge: The accused must have knowledge of the specific circumstances of the crime. They
must generally know that the conditions of the actus reus exist.
a. Since knowledge is a subjective mens rea element, there is a default presumption that
the accused “knows of the circumstances” and it is up to the accused to rebut this
presumption by arguing that they took the reasonable steps to determine truth/actual
facts.
5. R v Ewanchuk: Man met a woman at a bar and asks to see her ID because she looks young and
her it shows that she is 22. Man and woman go home and have sexual intercourse. The man is
arrested for having sexual relations with a minor.
a. He can argue he took reasonable steps to ascertain her age and thus held an honest
mistaken belief. If he can successfully prove this, he will be acquitted (likely).
b. Rule: the accused must give evidence that they had an “honest mistaken belief”.
6. R v Barton: Ms. Gladue, an Indigenous woman, bled to death from a wound inside her vagina. Mr.
Barton was charged with first degree murder.
7. Rule: defenses against woman cannot be used as a self-defence to sexual assault.
a. “The law says defences to sexual assault can’t rely on things that support myths about
women or sexual consent. That means these myths can’t be used to help decide if
someone agreed to a sexual act (or if the person charged honestly believed they did).
The first myth is that women who have had sex before are more likely to agree to sex.
The second is that such women might not be telling the truth.”
8. Held: charged with manslaughter not first-degree murder and held that Mr. Barton had to believe
Ms. Gladue communicated that she agreed, NOT just that she agreed to the sexual act.
9. R. v. A.D.H [2013]: The accused, not previously knowing that she was pregnant, gave birth while
using the toilet in a retail store and left the baby there thinking it was dead. She was charged with
unlawfully abandoning a child under the age of 10 years old and thereby endangering his life
contrary to s. 218 of the Criminal Code.
10. Subjective fault was required and found that the Crown had not proven beyond a reasonable
doubt that the accused intended to abandon her.
11. “Abandon”, “expose” and “wilful” = subjective fault.

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 a. Abandon/expose: involve more than just leaving a child alone or failing to take care of
it: they denote awareness of the risk involved (s. 214), they suggest a requirement for
knowledge of the consequences flowing from the prohibited acts of abandonment
or exposure. A
b. Wilful: “it is used in relation to omissions, and a wilful omission is the antithesis of a
crime involving a mere failure to act in accordance with some minimum level of
behaviour...”
12. Wilful Blindness: “Willful blindness applies to the accused’s state of mind. It describes a situation
where someone tries to escape criminal liability by intentionally overlooking the obvious”. (R v
Downey).
a. WB is a substitute for actual knowledge.
13. Recklessness: Reckless requires a subjective standard such that the accused is “aware that
there is danger that his conduct could bring about the result prohibited by the criminal law,
nevertheless persists, despite the risk.” (R v Sansregret).
14. Two elements of recklessness:
a. (1) a consciousness of a risk or danger, and
b. (2) a choice to persist in the conduct that causes the risk (R v Vinokurov).
15. Compared to Wilful Blindness: Recklessness is “something less than” wilful blindness.
Recklessness cannot satisfy an offence which requires knowledge as an essential element (R v
Sandhu). Not a substitute for knowledge.
16. Mens rea is satisfied as long as the outcome was intended or achieved through recklessness.
17. R. v. ADH and R. v. Zora affirmed the common law presumption that the subjective intent (mens
rea) of recklessness is mandated unless Parliament has clearly suggested or indicated an intent
to require objective fault.
d. Objective Mens Rea
i. Reasonable person standard = as one would imagine approach.
ii. “…An accused can be convicted because their dangerous conduct constituted a marked departure from
the norm and a reasonable person would have foreseen and avoided the risk.”
iii. If the standard is objective mens rea, it is NOT grounded in what the accused actually knew, intended or
foresaw, but rather what a reasonable person should have done or ought to have known.
iv. Two-part test to determine if objective mens rea was met (R v Beatty):
1. All the relevant evidence must be analyzed holistically, and it should be determined whether a
reasonable person would have foreseen or been able to predict the risk and taken precautions or
necessary actions to avert the risk – if yes, move on to the second step.
2. Analyze if the conduct and actions of the accused constituted “a marked departure from the
standard of care expected of a reasonable person in the accused’s circumstances”.
v. R v Creighton: the accused was a drug user who injected cocaine into another drug user’s arm. The
woman he injected stopped breathing and subsequently died because of the injection. Creighton did not
call 911 and instead cleaned the fingerprints. He was convicted of manslaughter. Although, he had no
subjective intention of causing her death or even serious bodily harm for that matter, his conduct fulfilled
the objective mens rea standard.
vi. Test:
1. A reasonable person would have foreseen the risk of injecting cocaine into a person’s arm.
a. Met, move to second step.
2. His conduct after the victim stopped breathing was blameworthy (culpable).
a. He did not call the police or ambulance, something a reasonable person would have
done granted the circumstances (marked departure from the standard of care
expected).
vii. R v Martineau: a conviction for murder cannot rest on anything less than intention or subject foresight of
death. Therefore, it is not an objective mens rea test, rather a subjective one.

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 viii. R v Creighton39: manslaughter involves objective mens rea.
1. Manslaughter involves two conditions:
a. conduct causing the death of another person (actus reus)
b. fault short of intention to kill (mens rea).
ix. Specific Intent Crime (murder): intend the result, death from murder.
x. General Intent Crime (manslaughter): intend only the act (assault), and not the end result (death).
xi. COMPARE CRIMINAL NEGLIGENCE AND RECKLESSNESS:
1. Negligence, an individual naively (“unknowingly”) pursues a risk that they should have been
cognizant of.
a. If a person OUGHT or SHOULD have known, then that suffices for negligence (it is an
objective standard).
2. Recklessness involves knowingly taking a risk. KNOWING is the fundamental difference.
3. Objective, reasonably foreseeable, wanton disregard, criminal negligence = objective mens
rea.
xii. R v. Javanmardi [2019]: She was educated and clinical trained regarding intravenous injections. Ms.
Javanmardi recommended to Mr. Matern an injection for his heart disease. One of vials was contaminated
and Mr. Matern died.
1. Ms. Javanmardi was charged with two crimes:
2. (a) “Unlawful act manslaughter”
a. (Doing something illegal that causes someone to die).
3. (b) “Criminal negligence causing death”
a. (Doing something that a “reasonable person” wouldn’t have done that causes someone
to die).
xiii. SCC Held: A reasonable person in Ms. Javanmardi’s position would not have thought that the injection
would harm or hurt Mr. Matern. Ms. Javanmardi’s actions did not constitute a “marked departure” from
what a reasonable person with her skills, knowledge, experience, and training would have done, and thus
not guilty on both charges.
e. Regulatory Offences
i. These offences are capable of being created by any level of government (provincial or federal).
ii. The standard for proving liability in these types of offences is lowered: no mens rea requirement.
iii. R v Sault Ste. Marie [1978]: The city built a disposal site that resulted in waste seeping into the water.
1. The court had to decide whether the offence committed by the city should be classified as strict or
absolute liability.
iv. Three categories of offenses (R v Sault Ste. Marie):
1. True Crimes
a. Some degree of mens rea.
b. “Knowingly, willfully, or intentionally.”
2. Strict Liability (can include prison time)
a. No proof of mens rea.
b. Actus rea is enough to warrant punishment, EXCEPT if accused can show they acted
reasonable, in a diligent manner, they may be acquitted (due diligence defense).
3. Absolute Liability (cannot include prison time)
a. No proof of mens rea.
b. No option for due diligence defense.
i. Example: Absolute liability makes a person liable for a criminal offence,
regardless if that individual took steps to avoid fault (i.e. due diligence). It is
not like strict liability, where at least the accused has the due diligence
offence.

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 4. R v Raham [2010]: The defendant was caught speeding (driving 50km and over) and was
charged with ‘stunt driving’ under the Highway Traffic Act. Due diligence is available as a defence
for this particular offence.
5. Held: This was not an absolute liability offence because of the existence of the due diligence
defence. The potential for jail time, as such, was not deemed to be unconstitutional.
6. Levis (City) v Tetreault [2006]: The respondent company in the case was charged with
operating a vehicle for which the registration fees were not paid. The company raised the due
diligence defense.
a. The respondent, T, was charged with operating a vehicle without a valid driver’s license.
T argued the defense of due diligence.
b. He said that he was not cognizant that the date on his license was in fact the expiry
date. Instead, he thought it was the date that a payment needed to be paid.
7. Held: The court held that the offences fell under strict liability offences and the due diligence
defence had not been established: passive ignorance is not a valid defense in criminal law.
v. Steps to determine if it is a regulatory offense or a true crime offense?
1. STEP 1:
2. Is the name of a province in the Act?
a. If yes = regulatory
3. Is the word “regulation” or “regulatory” in the Act?
a. If yes = regulatory
b. True crime (criminal) offenses are designed to condone and punish past, and
inherently wrongful conduct.
c. Regulatory measures are directed to the prevention of harm through the enforcement
of minimum standards of conduct and care.
4. STEP 2:
5. If it is a regulatory offense, you must determine whether it is strict or absolute liability?

Regulatory Offenses
Strict Liability Offence Absolute Liability Offence
• Jail/incarceration a possibility (penalty) • Fine is a usual consequence.
• Due diligence defense available. • Cannot have jail as a penalty!
• Raham – stunt driving was punishable by o (unconstitutional = violates section 7 of the
incarceration. Charter)
• Levis (City)– due diligence offence was available; • Speeding is an example: if you are speeding,
defendant failed to prove he acted diligently you have no due diligence offence available; you
rather; he was passive. committed the offence/act = you are guilty.
• Sault Ste Marie: strict liability offence allows you
to demonstrate you exercised all due diligence or
took all reasonable steps to avoid liability.

3. EXTENTIONS OF CRIMINAL LIABILITY

a. Aiding and Abetting
i. Aiding: physically support (e.g., locking the door or closing the trunk).
1. Example: your friend kidnaps someone. You are aware of her actions. She asks you to close the
trunk after she throws the body in it. By closing the trunk, you are aiding her.

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ii. Abetting: encourage or incite.
1. Example: If you were to encourage your friend to punch someone else, by, for example, yelling
“hit him! You can do it!” and so forth, you could be charged with abetting him in the commission
of assault.
iii. R v Dunlop and Sylvester [1979] (actus reus of aiding & abetting):
1. Dunlop and Sylvester went to a party where a gang rape of a teenager girl took place.
a. The girl, at trial, testified that Dunlop and Sylvester were participants in the rape.
b. The jury had to decide if the two males had participated to the extent that aided or
abetted in the raping.
2. Rule: One must be able to infer that the accused had prior knowledge that an offence of the type
committed was planned, i.e., that their presence was with knowledge of the intended rape.
3. Held: Dunlop and Sylvester were indeed at the scene of the crime. But being present alone is not
adequate to establish culpability.
a. Therefore, “mere presence and passive acquiescence” DO NOT = aiding or abetting.
b. Dunlop and Sylvester were not aware that the rape was going to happen. An individual
cannot be convicted of aiding or abetting if he or she did not have any knowledge or
awareness of the intended crime.
4. R v Logan [1990]: Respondents were convicted of murder. An individual was shot and injured
during a robbery. None of the respondents executed the shooting.
a. Johnson, one of the respondents, confessed to being one of the robbers. He claimed he
had no intention to shoot and no knowledge of the involvement of guns.
b. The judge “instructed the jury that the Crown had to establish beyond a reasonable
doubt that the accused knew or ought to have known that someone would probably
shoot with the intention of killing”.
5. Held: When it comes to attempts, intent is what is being punished. For instance, if you attempt to
kill someone and they end up surviving, you did not cause their death. As such, you cannot be
convicted or murder, rather, you are convicted of ‘attempted murder’.
6. Section 21(1) of the CC – “parties to an offence” requires two stages:
a. (1) is there a minimum degree of mens rea which is required as a principle of
fundamental justice before one can be convicted as a principle for this particular
offence.
b. (2) if the principles of fundamental justice do not require a certain minimum degree of
mens rea to convict for this offence, then that minimum degree of mens rea is
constitutionally required to convict a party to that offence as well.
7. R v Ancio: (no death, only injury) “the elements of mens rea for attempted murder are identical
to those for the most severe form of murder...the accused must have had the specific intent to
kill. All that differs is the ‘consequences’ component of the actus reus”.
8. R v Briscoe [2013]: purpose has two elements (s. 21(1)(b)): INTENT AND KNOWLEDGE
a. Intent: Crown has the burden of proving that the accused intended to assist the
principle in the commission of the offence
i. “It is not required that the accused desired that the offence be committed”.
b. Knowledge: The accused must be aware and know that the principle intends to commit
the criminal offence. “...in order to have the intention to assist in the commission of an
offence, the aider must know that the principal intends to commit the crime, although he
or she need not know precisely how it will be committed”.
9. R v Thatcher [1987]: The appellant was arrested and charged with causing the death of his ex-
wife. The Crown led direct and circumstantial evidence to provide that the appellant had
personally murdered his ex-wife, or that he aided or abetted the killer and was therefore guilty as
a party to the offence. There was evidence that demonstrated that he did not commit the crime
personally.

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10. Held: Section 21(1) makes the “distinction between participation as a principal and participation
as aider and abettor legally irrelevant”.
a. The form of participation of the accused was not a necessary decision that needed to
be made by the jury.
11. R v J.F.: J discovered that two sisters were deliberately planning and intending on murdering their
mother by getting her severely intoxicated and then drowning her. J offered information to one of
the sisters, T, about dying by drowning. J recommended the sisters give the mother codeine with
the alcohol and provided tactics for the sisters to misguide the police.
a. Evidence was also given that J supplied the codeine pills and met up with the sisters
following the crime in order to provide an alibi to them.
12. Held : The court held that although party liability to conspiracy involves “aiding or abetting the
formation of a new agreement, it also includes aiding or abetting a new member to join a pre-
existing agreement”.
a. A person becomes a party to the commission of an offence if he aids or abets the
principle in executing the criminal offence; with conspiracy, this would have been the
agreement portion.
b. Here, J did not aid or abet in the initial execution of the agreement/plan and thus
cannot have party liability.
13. R v Gauthier [2013] (defense of abandonment): The accused and her husband had
established a murder/suicide pact that involved killing their three children and then themselves.
Planned to mix drugs into the drinks. The wife obtained the “murder-weapon” (poisoning for the
drinks). The husband prepped and served the drinks to the kids. As a result, the children and
husband died; but the wife survived.
14. Held: The defence of abandonment can only be put to the jury if evidence exists to support each
element of the defence.
15. Four conditions must be met:
a. (1) that there was an intention to abandon or withdraw from the unlawful purpose;
b. (2) that there was timely communication of this abandonment or withdrawal from the
person in question to those who wished to continue;
c. (3) that the communication served unequivocal notice upon those who wished to
continue; and
d. (4) that the accused took reasonable steps either to neutralize or otherwise cancel out
the effects of his or her participation or to prevent the commission of the offence.
16. R. v. Cowan [2021]: Two people robbed a Subway store. One had a mask on and the other
stood at the door watching. C was arrested and denied any involvement in the crime. He did
however admit to telling a group of people how to commit robbery.
17. Issue: A new trial was ordered which was confined to the issue of C’s guilt as a party, on the
grounds of abetting or counselling.
18. Held: To determine criminal liability, the CC does not distinguish between principal offenders and
parties to an offence.
a. Abetting:
i. The actus reus of abetting is doing something or omitting to do something
that encourages the principal to commit the offence.
ii. For the mens rea, the abettor must have intended to abet the principal in the
commission of the offence and known that the principal intended to commit
the offence.
b. Counselling:
i. The actus reus of counselling is the deliberate encouragement or active
inducement of the commission of a criminal offence. The person encouraged
or induced by the counsellor must also actually participate in the offence.

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 ii. As for the mens rea, the counsellor must have either intended that the
offence counselled be committed, or knowingly counselled the commission of
the offence while aware of the unjustified risk that the offence counselled was
likely to be committed because of the accused’s conduct.
c. Whether the person counselled is a principal or party is irrelevant since the focus on a
prosecution for counselling is only on the counsellor’s conduct and state of mind.
19. The Crown only needed to establish that any one of the people encouraged by C went on to
participate in the commission of the offence either as a principal offender or as a party.
a. In terms of a principal offender, C would be guilty as both an abettor and a counsellor.
b. In terms of a party, C would be guilty as a counselor.
b. Counselling
i. An accused can be convicted of counselling offences, whether or not the offences counselled are actually
committed.
ii. An accused person can be found guilty of counselling, even if the principal offender if acquitted (R v Hick).
iii. ALWAYS REMEMBER:
1. When the offence is committed = section 22
2. When the offence is NOT committed = section 464
iv. The elements of the offence, under s. 22, involve 4 components, as per R v Keepness:
1. The act of persuading or inducing the commission of the offence;
2. The commission of the offence itself;
3. The commission must be the consequences of the counselling;
4. The accused intended to counsel or knowingly counselled, aware of the risk that it would bring the
commission of the offence.
v. R v Hamilton [2005]: Hamilton sent ‘teaser’ emails online to hundreds of people. During discovery, a
document on the accused’s computer was found that explained a credit card number generator. However,
this document was not part of the files that were sold. A list of visa numbers was also found in Hamilton’s
possession. The bank had not made any complaints regarding the improper use of the visa numbers.
vi. Held: The concern in this case is with the imposition of criminal liability on those who counsel others to
commit crimes.
1. The actus reus for counselling is the deliberate encouragement or active inducement of the
commission of a criminal offence.
2. The mens rea consists of nothing less than an accompanying intent or conscious disregard of the
substantial and unjustified risk inherent in that counselling”.
vii. The SCC agreed with the trial judge’s conclusion, specifically that the accused did not have the required
mens rea. “...the trial judge found the accused lacked sufficient knowledge of the consequence of his
actions to satisfy the mens rea requirement.”
c. Attempts
i. Not all criminal offences mandate completion before an offence arises.
1. Example: plan to drug a friend to kill her. However, she ends up surviving. Thus, you cannot be
charged with murder. You will, however, be charged with attempting to murder your friend.
ii. For attempt to be established, the accused must have gone beyond “mere preparation” (R v Sarrazin).
1. An idea or plan itself is NOT an attempt.
2. For instance, if you write a plan to commit murder that involves breaking and entering someone’s
home and then using a knife to stab them to death, but you only go as far as obtaining the dates
as to when the person will be home alone, you have not done enough to be charged with
attempted murder.
iii. “The criminal attempt begins only once the preparation is complete. The accused will then perform a series
of acts with the intention of committing the offence” (R v Cline).
1. Example: the person intending to commit murder must have purchased the knife for the killing
and scheduled the date when the break and enter would occur for the mere preparation
component to be achieved. At this point, attempted murder has not yet occurred.

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 iv. The act will be adequate in situations wherein the “accused actions have progressed a sufficient distance –
beyond mere preparation – down the intended path” (R v Root).
1. If there are 10 steps involved to finalize and complete the crime, and the accused reached step
8, then this would go beyond mere preparation. If, on the other hand, the accused was only at
step 2, this would more likely constitute mere preparation.
v. R v Ancio [1984]: Ancio, desired to speak with his estranged wife. He broke into her apartment with a
loaded gun. His estranged wife had been living with another man, Kurely, who went to see what the loud
noise was.
1. He saw Ancio climbing the stairs and in shock, threw a chair at him. The gun that Ancio had
discharged. It, however, missed Kurely.
vi. Held : If a person does not have a specific intent to murder, then he cannot be charged with murder. This is
consistent with attempted murder.
1. Accidentally killing a person will typically not lead to a murder charge, rather, the accused will
likely be convicted of manslaughter. If a person accidentally ALMOST kills another person, they,
likewise, cannot be charged with attempted murder.
2. “For attempted murder, nothing short of intent to kill will suffice for the mens rea of that
offence”.
3. Ancio’s intent was to speak to his estranged wife, not to kill her boyfriend.
vii. R v Deutsch [1986]: Deutsch input an ad in the newspaper seeking a secretary-sales assistant. The
accused informed them that they would have to engage in sexual intercourse to secure clientele.
Undercover officer went in for an interview and affirmed the situation.
1. Deutsch was charged with attempting to procure females for illicit intercourse with other persons.
viii. Held: “Were the accused’s actions enough to lead to a conviction for intent, or were they merely
preparatory actions?” YES
1. There was a major step that literally comprised of the majority of the attempt, that was putting the
advertisement in the newspaper, conducting the interviews and luring women by the appeal of a
reward.
2. The accused had the necessary intent to induce or persuade the women.
3. There was not much else that could have been done or that was required in order to complete
the offence other than provide a formal employment offer to the women.
ix. R v Dery [2006]: The two accused, D and S, were charged with conspiring to commit theft and conspiring
to possess stolen liquor.
1. It was held that “no agreement had been established between the two men to steal or possess
liquor” and as such, the two men were acquitted of conspiracy.
x. Held: The is no offence of ‘attempting to conspire”.
d. Corporate and Association Liability
i. Organizations are subject to the CC. Corporations and associations are only capable of acting through their
employees and agents (i.e., Vicariously).
ii. It is through the people that represent the organization that the company conducts business and attends
to legal matters.
1. Criminal Liability of Directors, Officers and Employees
2. The officers and directors of a corporation cannot be convicted of a criminal offence for actions
on behalf of the corporation merely by virtue of their status.
3. If a director or officer is considered or deemed the ‘directing mind’ of the corporation and they
are directing the corporation to commit criminal offences that advantage the corporation itself, or
if the director or officer is engaging in criminal activity within the corporate context, then they can
be held responsible in criminal law.
a. Here, director officer would likely be charged jointly and separately.
4. Canadian Dredge & Dock Co. v The Queen:
5. Identification Doctrine (acts that directly benefit the directing mind from the outset and cannot be
attributed to the corporation).

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 6. The identification doctrine only operates where the Crown demonstrates that the action taken
by the directing mind:
a. was within the field of operation assigned to him;
b. was not totally in fraud of the corporation; and
c. was by design or result partly for the benefit of the company”.
iii. Directing Minds (DM’s) are senior officers or members of a corporation who have an “express or implied
delegation of executive authority to design and supervise the implementation of corporate policy rather
than simply to carry out such policy.”
iv. A DM will be criminally liable when acting within the scope of his or her position/employment/role of the
corporation.
4. SELECT CRIMINAL DEFENCES
a. Mental Disorder
i. The accused must prove that he has a “mental disorder”, as defined in section 2, as a “disease of the
mind”.
1. The purpose of this section is to recognize the fundamental principle that an individual who
suffers as a result of a mental disorder should not be held criminally responsible (R v Ejigu
[2016]).
2. The mental disorder must render the individual incapable of making rational, logical or
autonomous decisions (R v Chaulk [1990])
ii. Proving Mental Disorder – How to Establish and Successfully Use the Defence:
1. The defence must demonstrate that the person was suffering from a mental disorder (“disease of
the mind”) and, as per section 16 (1) of the CC, that he or she was unable to appreciate the
“nature and quality” of the act OR “did not know it was wrong.”
a. (R v Swain [1991]; R v Oommen [1994])
iii. R v Cooper [1980]: Cooper was an out-patient at the psychiatric hospital unit in Hamilton.
1. He was charged with murdering an in-patient at the same institution. After Cooper tried to have
sexual intercourse with the victim and was unsuccessful, he choked her.
2. The insanity defence was not raised during the trial.
3. A psychiatrist was called and testified that “he did NOT think that the accused was suffering with a
disease of the mind”.
iv. Disease of the Mind
1. The question of whether or not such a state amounts to “a disease of the mind” is a question of
law for the judge to determine.
2. Disease of the mind comprises of any “illness, disorder or abnormal conditions” which impairs or
blights the mind of a human being and its proper operation and function.
a. It DOES NOT include self-induced states (i.e. alcohol, drugs) NOR does it include
transitory states (i.e. concussion, hysteria)
v. Appreciate:
1. 16 (1) No person is criminally responsible for an act committed or an omission made while
suffering from a mental disorder that rendered the person incapable of appreciating the nature
and quality of the act or omission or of knowing that it was wrong.
vi. The components or elements of the mental disorder exemption:
1. Crown has to establish beyond a reasonable doubt the accused committed the crime;
2. Accused must demonstrate their condition is a “disease of the mind”;
3. The condition must be the reason that the accused was not able to or did not have the capacity
to appreciate either the “nature and quality” of the act or to know that it is wrong;
4. The legal consequence is not an acquittal, but a special verdict of “no criminal responsibility”
under section 672.34.
vii. R v Kjeldsen [1981]: Medical evidence uncovered that the appellant was a psychopath and “understood
the physical nature and consequences of his act, though indifferent to such consequences”.

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 1. Rule: was the accused person at the very time of the offence—not before or after, but at the
moment of the offence—by reason of disease of the mind, unable fully to appreciate not only the
nature of the act but the natural consequences that would flow from it?
a. In other words, was the accused person, by reason of disease of the mind, deprived of
the mental capacity to foresee and measure the consequences of the act?
viii. R v Oommen [1994]: Without any motive, Oommen murdered his sleeping friend. The accused suffered
with mental illness, which was “described as a psychosis, and his paranoia was fixed on a belief that the
members of a local union were conspiring to ‘destroy’ him”.
1. He believed that the members of the local union were out to kill him. He also believed that his
friend was one of these members.
ix. Held: An accused should be exempted from criminal liability where, at the time of the act, a mental disorder
deprived him of the capacity for rational perception and hence rational choice about the rightness or
wrongness of the act.
1. Here, the evidence supports a conclusion that the accused was deprived of the capacity to know
his act was wrong by the standards of the ordinary person.
x. ‘Disease of the Mind’ includes:
1. Psychopathy (but not always) (Cooper; Simpson; Kjeldsen)
2. Intellectual disability (ID) (R v MSR)
3. Sleep walking (but not always) (R v Parks)
b. Automatism and Involuntary Acts “Negativing” the Actus Reus
i. If the accused it not conscious of their conduct, they may be able to claim “automatism”.
ii. Automatism has been defined as “a state of impaired consciousness” (R v Stone).
iii. Automatism impacts the actus reus of a criminal offence (without the actus reus, the crime cannot have
been said to be committed).
1. Example: If the accused’s physical motions were not culpable where they are not voluntary or
thought-directed or conscious, as in the sleeping-walking case of R v Parks, they cannot be held
liable.
iv. TWO CATEGORIES of Automatism:
1. Insane (Mental Disorder) Automatism
a. If automatism because of a mental disorder is found, the accused will be said to be not
criminally responsible on account of mental disorder (NCR-MD).
2. Non-insane (Non-Mental Disorder) Automatism
a. If the defence of “non-insane automatism” is successfully argued = complete acquittal.
v. R v Park [1992]: The respondent attacked his sleeping mother and father in-law. He murdered the mother
and seriously injured the father. Directly after the attack, the respondent attended a police station and
confessed.
1. The respondent swore he was sleepwalking when he committed the act (no motive).
2. Other family members had suffered from sleepwalking.
vi. Issue: whether sleepwalking should be classified as non-insane automatism resulting in an acquittal OR
insane-automatism (‘disease of the mind’) resulting in NCR-MD.
vii. Steps to determine whether Insane/Non-Insane Automatism is Applicable:
1. The judge must establish if there is evidence on the record that supports leaving the defence with
the jury.
2. The accused must provide evidence (evidential burden rests with accused) and cannot simply
raise the defence without proof (i.e. witnesses, medical history).
3. Once the evidentiary burden is met, the “judge must then consider whether the condition alleged
by the accused is, in law, non-insane automatism.
4. If the judge is satisfied “that there is some evidence pointing to a condition that is in law non-
insane automatism, then the defence can be left with the jury.
a. “Did the accused suffer from or experience the alleged condition at the relevant time?

16
 b. Because the Crown must always prove that an accused has acted voluntarily, the onus
rests on the prosecution at this stage to prove the absence of automatism beyond a
reasonable doubt”.
5. Disease of the mind is more than just relying on the accused’s medical history; it is also about
evidence that the accused suffered from an abnormal mental condition = judge makes final all
based on ALL THE EVIDENCE
6. Recurring danger = insanity
7. Internal make-up/genetics (not external factors like drugs) = insanity
viii. R v Stone [1999]: The accused confessed to stabbing his spouse but swore he did whilst he was in an
automatism state due to the insulting words of his wife.
ix. Rule:
1. Non-Insane Automatism: arises where involuntary action DOES NOT stem from a disease of the
mind and entitles the accused to an acquittal.
2. Insane Automatism: arises only where involuntary action is found to result from a disease of the
mind and is subsumed by the defence of mental disorder.
a. A successful defence of insane automatism will trigger s.16 of the Criminal Code and
result in a verdict of not criminally responsible on account of mental disorder.
x. Test:
1. Rebut the presumption that the accused acted voluntarily.
a. This must be supported by proper evidence before it can be left with the jury to decide.
2. Once this has been met, the judge must then decide whether the accused suffered from a non-
mental disorder or a mental disorder automatism.
a. To determine whether the assessment of which form of automatism should be left with
the jury is based on whether the alleged condition is a mental disorder.
3. Internal Cause Theory:
a. The trial judge must compare the accused’s automatistic reaction to the psychological
blow to the way one would expect a normal person in the same circumstances to react
to determine whether the condition the accused claims to have suffered from is a
disease of the mind.
i. = OBJECTIVE TEST
4. Continuing Danger Theory:
a. Any condition which is likely to present a recurring danger to the public should be
treated as a disease of the mind.
b. In other words, the likelihood of recurrence of violence is a factor to be considered
in the disease of the mind inquiry.
5. All of these factors should be considered holistically and not as separate theories or tests.
xi. R v Cooper [1980]: this case is about what is “incapable of appreciating the nature and quality of the
violent act or knowing that it is wrong”.
1. To “know” the nature and quality does NOT EQUATE to being able to appreciate.
a. You may know what you are doing but have no idea the impact it will have.
i. Example: Lennie is mentally disabled and accidentally kills a puppy when
stroking it. He does not in any way intend to harm the puppy; merely, he
doesn’t recognize his own strength and the force of his actions.
xii. R v Luedecke [2008]: The accused was charged with the criminal offence of sexual assault. He claimed
that when the offence occurred, he was completely asleep (i.e., somnambulism) and acted entirely
involuntary.
xiii. Held: His sleepwalking was a disease of the mind, and the accused was granted an absolute discharge “on
the basis that he was not a significant threat to the safety of the public”.
c. Simple Intoxication and Specific Intent Crimes
i. The defence of intoxication is applicable not only to alcohol, but drugs as well.
ii. “Intoxication does NOT operate as a justification or excuse for criminal conduct.”

17
 iii. Intent is intent.
iv. Commit a general intent crime, CANNOT USE intoxication as a defense.

v. The Queen v George [1960]: The accused was charged with robbery with violence (i.e., robbery involves a
person who commits assault or violent acts with the intent to steal/theft) under section 288 of the CC. He
was acquitted because it was found that he was so intoxicated that he was not capable of forming the
necessary specific intent to commit the robbery (i.e., lacked mens rea).
vi. Held: Robbery is split into = theft + assault.
1. With the criminal offence of theft, a specific intent has to be established.
2. However, there is no specific intent that needs to be proved with common assault.
3. The trial judge found the accused didn’t have the ability to formulate the specific intent required
for robbery, but this did not mean that the accused could not have then committed common
assault.
4. The trial judge should have divided the two offences, theft, and common assault.
5. The court set aside the acquittal for the common assault portion and entered a guilty verdict for
this offence.
vii. R v Tatton [2015]: Tatton caused a fire while he was very intoxicated. He was charged with arson (section
434). He swore it was an accident.
1. “The trial judge determined that section 434 was a specific intent offence, meaning that Tatton
could rely on self-induced intoxication as a defence. Tatton was acquitted”.
viii. Held: Have to determine whether an offence is one of general or specific intent must commence with
establishing the mental element of the offence = liability /use of intoxication defense.
1. THEREFORE, the offence of arson in s. 434 is a general intent offence “for which intoxication
falling short of automatism is not available as a defence”.
ix. Rule:
1. The “Importance” of the Mental Element
a. The thought and reasoning processes for general intent crimes are relatively
straightforward.
i. The mental element is more rudimentary (i.e., you hit someone, you commit
assault); these crimes do not necessitate an intention to produce specific
consequences.
b. Specific intent crimes – those crimes with a more ‘important’ mental element – require
a more sophisticated reasoning process”.
i. Include a more sophisticated level of intention (“a heightened mental
element”).

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 x. The Role of Policy
1. Only relevant if after analyzing the mental element (step 1), it is still uncertain as to how the
crime should be categorized/classified.
2. Example: if intoxication and the criminal offence commonly occur together, then to allow
intoxication as a defence to the particular crime would actually appear to promote the criminal
behaviour.
xi. R v Robinson [1996]: The accused committed murder while intoxicated. There was evidence that
demonstrated he had been drinking with the victim and other people. The victim insulted the accused, and
this was what compelled the accused to kill him.
xii. Held: These rules provide that intoxication is not a relevant factor for triers of fact to consider except where
the intoxicant removed the accused’s capacity to form the requisite intent.
xiii. Before a trial judge is required by law to charge the jury on intoxication, they must be satisfied that the
effect of the intoxication was such that the effect might have impaired the accused’s foresight of
consequences sufficiently to raise a reasonable doubt.
1. Once a judge is satisfied that this threshold is met, he or she must then make it clear to the jury
that the issue before them is whether the Crown has satisfied them beyond a reasonable doubt
that the accused had the requisite intent.
d. Extreme Intoxication and General Intent Crimes
i. Extreme Intoxication can be used as a defence to BOTH general and specific intent offences (in common
law) = RARE.
ii. In the case of Daviault, if a person was so extremely drunk, to the point that they were entirely incapable of
making any conscious decision, then the Charter would mandate an acquittal because the principle of
‘voluntariness’ is paramount and fundamental to the justice system.
iii. R v Daviault [1994]: The accused committed sexual assault whilst extremely intoxicated. There was a
pharmacologist who was called to the stand as an expert witness who testified that a person with the
blood-alcohol ratio that the accused had would have possibly suffered a blackout.
1. The appeal judge stated that the defence of ‘self-induced’ intoxication that led to a state that was
“equal to or akin to automatism or insanity” is NOT available as a defence to a general intent
offence (sexual assault).
iv. SCC Held – Exception to the above rule: if a state of drunkenness was so extreme that is resembled
automatism or a ‘disease of the mind’, then this could constitute grounds for the defence of extreme
intoxication.
v. R. v. Bouchard-Lebrun [2011]: B brutally assaulted two individuals while he was in a psychotic condition
caused by drugs – charged with aggravated assault.
vi. Rule:
1. Stage 1: Characterizing the mental state of the accused (whether the accused was suffering from
a mental disorder).
2. Stage 2: Defence provided for in s.16 concerns the effects of the mental disorder (it must be
determined whether, owing to his or her mental condition, the accused was incapable of knowing
that the act or omission was wrong).
a. In the instant case, it is not in dispute that B was incapable of distinguishing right from
wrong at the material time.
3. Stage 1: drug-taking is an external cause. The reaction of a normal person to taking drugs
would indeed be to develop toxic psychosis. This strongly suggests that B was not suffering from
a mental disorder at the time he committed the impugned acts.
a. And the rapid appearance of psychotic symptoms generally indicates that B’s delusions
can be attributed to an external factor.
b. The psychotic symptoms B experienced began to diminish shortly after he took the
drugs and continued to do so until disappearing completely.
c. The disappearance of the symptoms showed that the symptoms of toxic psychosis
coincided with the duration of B’s intoxication.

19
 d. It could thus say that B suffered from no disease of the mind before committing the
crimes and once the effects of his drug-taking had passed. There is no valid reason to
depart from this conclusion.
4. Stage 2: the continuing danger factor is directly related to the need to ensure public safety.
a. There is no evidence indicating that B’s mental condition is inherently dangerous in any
way.
b. Provided that B abstains from such drugs in the future, which he is capable of doing
voluntarily, it would seem that his mental condition poses no threat to public safety.
c. B was not suffering from a “mental disorder” for the purposes of s.16 at the time he
committed the assault.
d. A malfunctioning of the mind that results exclusively from self-induced intoxication
cannot be considered a disease of the mind in the legal sense, since it is not a product
of the individual’s inherent psychological makeup.
5. R v. Sullivan [2020]: The two cases heard jointly (Sullivan and Chan).
6. Sullivan and Chan were tried and convicted of assault. Chan willingly took magic mushrooms, then
stabbed his father to death thinking his father was the devil.
a. Sullivan tried to kill himself by overdosing on prescribed medication; he had a psychotic
episode and stabbed his mother thinking she was an alien.
b. Both in an automatic state (self-induced intoxication); however, they could NOT employ
this as a defence because of section 33.1 of the Criminal Code.
7. Rule: Section 33.1 legislated that an individual is guilty of a violent offence EVEN IF they were so
heavily intoxicated that they were unaware what they were doing and of their actions, AS LONG AS
it was self- induced intoxication (i.e., no one drugged the person without them knowing).
However, this has been overturned in this case.
8. Held: Since section 33.1, has been struck down, “the defence of non-mental disorder automatism
is now open to be used by defendants accused of violent crimes committed while in an automatic
state as a result of self-induced intoxication”.
e. Defence of the Person
i. Defence of the person is a form of justification and is not akin to excuses; it does not concentrate on the
notion of ‘human frailties’ and instead will render the actions of the accused as ‘morally acceptable’ (Ryan).
ii. R v Lavallee [1990]: The battered woman was threatened and beaten by her partner. She shot him while
he was leaving the room in the back of the head.
1. A psychiatrist testified the shooting was a desperate final act of a woman who truly and genuinely
believed she was going to be murdered that night.
2. The appellant was acquitted by the jury; however, this was overturned in the Court of Appeal.
iii. SCC Held: Expert evidence is usually necessary when stereotypes and myth are present and inherent in the
argument of the accused – accused acquitted.
1. If the expert relies heavily on his or her experience, and less on the actual facts of the case (i.e.,
making deductions and analyzing the general battered women syndrome as opposed to relating
to the facts and depending on the hard evidence), then the jury is to give less weight to the
expert’s opinion.
iv. R v Cormier [2017]: Three criteria must be met for the accused to use the defense of self-defence (if not
all three are met, the defense will fail).
1. Reasonable Belief:
a. The accused must REASONABLY BELIEVE the force or threat of force will be used
against them or another person (i.e., your child).
b. A person does not need to be in the midst of the act (i.e., just about to attack you) for
self-defence is to be a viable defence.
c. Imminence was replaced with reasonable perception.

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 2. Defensive Purpose:
a. Your purpose (subjective) for retaliating to the threat must have been to protect
yourself or another individual.
b. “Only force which is actually used for the purpose of self-defence is permitted”.
3. Reasonable Response:
a. The action is assessed for reasonableness in the circumstances.
b. R v. Kill [2020]: Khill shot and killed Styres. He was charged with second degree
murder. At trial, Khill testified that he shot Styres in self-defence, believing that Styres
was armed and about to shoot him.
c. Rule: Self-defence (s. 34(1)), has three elements (trigger, motive, and response):
i. the accused must believe, on reasonable grounds, that force is being used or
threatened against him: s. 34(1)(a) [the trigger];
ii. the act of the accused said to constitute the offence must be done for the
purpose of defending himself: s. 34(1)(b) [the motive]; and
iii. the act said to constitute the offence must be reasonable in the
circumstances: s. 34(1)I [the response]
d. Issue: Not if Mr. Khill, given his traits and experiences, saw his act as reasonable, BUT
INSTEAD, if the jury, with regard to his traits and experiences (military training) deemed
the shooting of Mr. Styres as reasonable.
e. Held: The Court allowed the appeal, set aside the acquittal and ordered a new trial.
f. Necessity
i. This defence allows the accused’s conduct to be excused in the circumstances wherein the conditions of
the defence have been satisfied.
ii. Common law defense preserved under s. 8(3) of the CC.
iii. R v. Latmer [2001]: The accused’s daughter had a severe form of cerebral palsy.
1. The accused killed his daughter, claiming it was to end her suffering and that the killing was
absolutely necessary in the circumstances. He was charged with first degree murder.
iv. Test for Defense of Necessity:
1. There must be an urgent situation of “clear and imminent peril”. The danger must be
unavoidable.
2. No reasonable legal alternative to the course of action (can’t avoid breaking the law).
3. Proportionality between the harm imposed and the harm avoided.
v. Held: The court held that the father did not personally face or encounter any peril/danger. Moreover, the
daughter’s pain and suffering did not constitute an emergency.
vi. R v Perka, [1984]: The peril or danger described in the first condition must be “near and avoidable”.
1. “The situation must be so emergent, and the peril must be so pressing that normal human
instincts cry out for action and make a counsel of patience unreasonable”.
g. Duress
i. Duress as a defence is NOT a justification; rather, it is an excuse at law.
ii. The defence of Duress is contained in s. 17 of the CC and is also available at common law.
1. Section 17 is very limited in its application; it can only be applied in situations that adhere to the
provision conditions (i.e., immediate and present).
2. This meant that future threats did not apply.
iii. R v Hibbert [1995]: There is the statutory defence of duress under s.17 of the Criminal Code OR the
Common Law defence.
iv. The defence cannot be used if you could have escaped the situation.
v. Rule:
1. Look to see if there was a “safe avenue of escape” = it is determined according to an objective
standard (“reasonable person in the circumstances”).
2. If “safe avenue of escape” exists = no common law defence of duress or statutory defence of
duress (BOTH WILL FAIL).

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 vi. R v Ruzic [2001]: Section 17 in the CC is rigid (mandates the elements of immediacy and presence).
vii. Held: “The under-inclusiveness of s. 17 infringes s.7 of the Charter, because the immediacy and presence
requirements exclude threats of future harm to the accused or to third parties. It risks jeopardizing the
liberty and security interests protected by the Charter, in violation of the basic principles of fundamental
justice. It has the potential of convicting persons who have not acted voluntarily”.
viii. Rule – Elements of the Common Law Defence:
1. Acts solely because of threats of death, or serious bodily harm to herself or another person.
2. The threats were of such gravity or seriousness that the accused believed that the threats would
be carried out.
3. The threats were of such gravity that they might well have caused a reasonable person placed in
the same situation as the accused, to act in the same manner as she did.
a. Would a person of reasonable firmness, sharing the characteristics of the accused,
such as her age and her background, have responded to the threats.
4. The accused must not have had an obvious safe avenue of escape.
ix. When to use Section 17 or the Common Law:
1. PRINCIPAL OFFENDER = Section 17 AND COMMON LAW
2. PARTY to an offence = Only Common Law
3. If the accused acted in a situation wherein the “person who made the threat” was not present =
use Common Law
4. If the accused acted in a situation where there was no sign of immediacy but there was a
temporal connected = use Common Law (for both principal and party).
5. If an accused is an aider or abetter, ONLY THE COMMON LAW IS OPEN.
x. R v. Ryan [2013]: Ryan was the victim of an abusive relationship. She hired a hitman to kill him, as she
truly believed that her husband would seriously harm her and her daughters or cause them death and that
no safe avenue of escape existed, other than murdering him.
1. She could not use the defence of duress.
a. The Court held “the defence of duress is only available when a person commits an
offence while under compulsion of a threat made for the purpose of compelling him or
her to commit the offence. This was not Ryan’s situation”.
2. The Court clarified that if there is no compulsion, then the accused only has defence of the person
as a viable defence.
xi. Takeaways from Ryan
1. It is important to note that if she was able to use the defence of duress, she could not have used
it under section 17, as there was no sense of immediacy.
2. If we apply the conditions as per Ruzic, a safe avenue of escape was available.
3. She could have called the police or took her daughters and left the home.
a. This does not mean she does not have a defence; it just means that the defence of
duress is not available to her.
xii. R v Aravena [2015]: This case involved a motorcycle gang, wherein an internal dispute broke out and
eight members were killed. Multiple members were charged with murder. These members invoked the
defence of duress.
xiii. Held: The Court of Appeal held that “the trial judge erred in law by holding that the common law defence of
duress was not available to persons charged as parties to a murder”.
xiv. “Choosing to aid in the murder of another will NOT ALWAYS amount to choosing an evil greater than the evil
threatened”.
1. You cannot use defence of duress for murder (i.e., someone threatens you “kill them or I will
kill you!”).
xv. However, Aravena found that the Common Law defence of duress was in fact available to an accused
who is charged as a party to a murder (not PRINCIPAL).

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 1. Example: you locked the door so the principal could execute the killing; you tied the victim up
(you did NOT do the killing; you were a party to it; you alone can use the defence of duress;
principal has no defence).
xvi. R. v. Willis [2016]: Willis was receiving death threats over drug debt. The dealers who were threatening
him also wanted a young woman killed for unrelated reasons. To avoid threat, Willis took MDMA and
stabbed the woman 30 times in parking lot, killing her.
xvii. At trial for first degree murder, Willis attempted to put forward defence of duress based on claim that it was
situation of ‘kill or be killed’.
1. Willis brought unsuccessful challenge to this law on basis of s. 7 of the Charter.
2. He claimed that s.17 of the CC violated s. 7 of the Charter.
xviii. He was convicted. He appealed.
xix. Held: The appeal was dismissed. The validity of section 17 was upheld.
1. The trial judge was accurate in deciding that murdering an innocent individual can never satisfy
the proportionality condition of moral involuntariness and permit the offence of murder to be
excused.
h. Provocation
i. The defence is ONLY applicable to murder!
ii. Provocation is a partial defence (i.e., the defence will reduce murder to manslaughter where all the
conditions of the defence are fulfilled).
1. Typical Context: husband/wife cheating situation.
iii. R v Tran [2010]: The accused and his wife were estranged.
1. The accused went uninvited into the home of his ex-wife and attacked both the wife and her
boyfriend. The accused stabbed the other man repeatedly and killed him.
2. The accused invoked the defence of provocation.
iv. Held: The Court held that provocation involves both an objective and subjective element (look at it from the
accused’s standpoint and the reasonable person).
1. Two steps:
a. Would the wrongful act deprive an ordinary person of self-control? (objective).
b. Did the accused have a chance to cool down before reacting to the wrongful act?
(subjective).
v. R. v Simard [2019]: Simard killed Larocque and another individual (Turner) and was charged with two
counts of second-degree murder. Simard brought a constitutional challenge to the 2015 provocation
amendments, contending it infringed s. 7 of the Charter.
vi. Held: The court held that the suitable remedy was severance.
1. After severance, s. 232(2) provides that “Conduct of the victim that is of such a nature as to be
sufficient to deprive an ordinary person of the power of self-control is provocation for the
purposes of this section, if the accused acted on it on the sudden and before there was time for
their passion to cool.”
vii. R v Land [2019]: Toby was convicted of second-degree murder for killing his roommate, Dominic. Dominic
was bludgeoned repeatedly with a hammer, beaten with a pair of crutches, and stabbed repeatedly with a
samurai sword.
1. Toby claimed he was ‘provoked’ into participating in Dominic’s killing.
2. The trial judge refused to leave this defence with the jury.
3. Toby alleged that this was an error and that there was an air of reality to his defence which
mandated the judge to welcome the jury to consider if the killing was provoked, within the
meaning of section 232 of the CC.
viii. Rule – Four components of the provocation defence:
1. there must be a wrongful act or insult;
2. the wrongful act or insult must be sufficient to deprive an ordinary person of the power of self-
control;
a. These two are objective (reasonable person).

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 3. the accused must have acted in response to the provocation; and
4. the accused must have acted on the sudden before there was time for his or her passion to cool.
a. These two are subjective (perception of the accused).
ix. Held: Just because the accused induced the acts or words said to constitute provocation, this DOES NOT
EXCLUDE the defence from being raised.
1. Mr. Land’s defence of provocation should have been left with the jury.
2. The Court allowed Mr. Land’s appeal and ordered a new trial.
i. Entrapment
i. Common law defence.
1. Example: you are at the mall and a police officer approaches you and starts questioning you as
to whether you have any drugs. He has no reasonable suspicion to asks these questions.
2. If you are in a circumstance where the state agent compelled you to commit the crime, you can
argue entrapment, even if, the state agent DID have a reasonable suspicion or made a bona fide
inquiry into the crime (R v Mack).
ii. R v Mack [1988]: Over a period of six months, he had insistently rejected the approaches of a police
informer. It was only after continued persistence, threats and the persuasion of a large cash sum, that the
appellant sold the police inform drugs.
iii. Rule – Entrapment occurs when:
1. the authorities provide an opportunity to persons to commit an offence without reasonable
suspicion or acting mala fides, as explained earlier or,
2. having a reasonable suspicion or acting during a bona fide inquiry (goes beyond providing an
opportunity and induce the commission of an offence).
iv. Mack provides factors that may be considered when assessing whether the police have gone further than
simply providing an opportunity.
v. Held: The Court declared that an objective examination and approach is required in terms of the conduct
and actions of the police.
1. The element of “reasonable suspicion or a bona fide inquiry” is absolutely critical; the law does
not want to risk or jeopardize the potential that a police officer will target individuals who are not
involved in criminal activity.
vi. R v Barnes [1991]: The police were undercover to convict people who purchase illegal drugs from citizens
who seem to be ‘inclined to sell drugs.’
1. The undercover police asked the appellant if they had any marijuana.
2. The police persistently asked until the appellant agreed to sell him miniscule portion of ‘cannabis
resin’.
3. The trial judge found the police officer had engaged in “random virtue testing”.
vii. Random Virtue Testing (RVT):
1. RVT ONLY arises when a police officer presents a person with the opportunity to commit an
offence WITHOUT a reasonable suspicion that:
a. The person is already engaged in the particular criminal activity, OR
b. The physical location with which the person is associated is a place where the particular
criminal activity is likely occurring.
viii. Held: The officer DID have a “reasonable suspicion”
1. The appellant’s “scruffy dress” was NOT sufficient to substantiate the “reasonable suspicion”
element.
2. BUT the location where the appellant was present substantiated the reasonable suspicion.
ix. The Court concluded that “the appellant, when he was in the Granville Mall, was in a location where it was
reasonably believed that drug-related crimes were occurring. The officer’s conduct was therefore justified”.
x. R v Ahmad [2020]: Police got an unsubstantiated tip that a phone number was associated with two men
that were selling drugs. The police called and arranged to meet up to buy the drugs.
1. A and W were later arrested and charged with drug-related offences.
2. Both accused’s claimed entrapment.

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 xi. Rule: Police cannot offer a person who answers the phone the opportunity to commit an offence without
having formed reasonable suspicion that the person using that phone, or that phone number, is engaged in
criminal activity.
1. The unsubstantiated tip was corroborated and thus A’s conviction was justified.
xii. Held: In A’s case, the police had a reasonable suspicion of drug trafficking before providing the opportunity
to commit an offence and therefore A was not entrapped.
1. There was nothing in W’s responses to suggest that the phone number was being used to sell
drugs before the officer provided the opportunity to traffic. Therefore, W was entrapped.
j. Error of Law or Colour of Right
i. Ignorance of the law by a person who commits an offence is not an excuse for committing that offence (s.
19).
1. This ignorance means “want of knowledge of those laws which a person has a duty to know, and
which everyman is presumed to know”.
ii. “Officially induced error” is a common law defence that the SCC has formulated.
iii. Regina v Howson [1966]: The informant parked his car on a private parking lot without permission.
1. The accused towed the to his company’s premises.
2. The accused refused to return the car until he was paid a towing and storage fee.
3. The informant paid it and recovered his vehicle and then charged the accused with theft.
iv. Held: the court was satisfied that the accused did honestly believe that he had a right either in law or in
fact to remove the car and retain it there until the informant paid the towing and storage fees.
1. The accused was entitled to an acquittal on the ground that it had not been shown that he acted
without colour of right (acted within the scope of the law).
v. R v Jones [1991]: The appellants were charged with unlawfully conducting a bingo contrary to section
206(1)(d) of the Criminal Code.
vi. Issue: whether the appellants were entitled to an acquittal by reason of colour of right?
1. The appellants sincerely believe that because the activities (i.e. bingo) were executed on a
reserve, it was not subject to the Canadian gaming laws.
vii. Held: The defence of colour of right is not applicable to section 206(1)(d) charges.
1. The appellants’ mistake was one of law, NOT of fact.
2. They mistakenly believed the law didn’t apply to them because they were operating on Indian
reserves.
viii. Rule: A mistake about the law is no defence to a charge of breaching it.
ix. Levis (City) v Tetreault [2006]: The company had relied on an error; resulted in them not receiving
renewal notice and not paying the registration fee for a vehicle.
1. Tetrault was charged with operating a vehicle without a valid driver’s licence.
2. He said that though the date on his license was the expiry date and it was the date that a
payment needed to be paid (i.e., he made an error).
x. Rule: Exception to ignorance of the law = officially induced error.
1. The accused can claim “officially induced error” if they prove all of the following conditions:
a. That an error of law or of mixed law and fact was made;
b. The person who committed the act considered the legal consequences of their actions;
c. The advice given to the accused came from an appropriate official;
d. The advice was reasonable;
e. The advice erroneous;
f. The person relied on the advice in committing the act.
xi. Held: “Absent a clear indication of the legislature’s intent, the offence must be categorized as one of strict
liability”.
xii. R. v. MacDonald [2014]: M was caught with a loaded gun. He was licensed to possess and transport the
handgun in Alberta, but not Nova Scotia, which he believed he was.
1. At trial, the judge concluded that M’s possession of the gun was unauthorized. M appealed.
xiii. Rule: Ignorance of the law is no excuse and thus has no defense.

25
 xiv. Held: M’s subjective belief that he could possess the firearm in his Halifax home is a mistake of law and
that mistake is no defence.
5. THE ADVERSARIAL PROCEEDING
a. The Adversarial Process
i. Crown must prove BEYOND A REASONABLE DOUBT the specific allegation made in the charge.
1. Convicted = the Crown has proved beyond a reasonable doubt that the accused is guilty of the
particular offence charged.
2. Charged = innocent until proven otherwise.
ii. Plea of Guilt: An accused may plead guilty (an admission of criminal liability) to a criminal charge, which will
result in a conviction and the surrendering of a trial (i.e. forfeit of chance to be proven innocent).
iii. Factors of a Guilty Plea: it must be satisfied that the accused is making the plea voluntarily and
comprehends three important components:
1. that the plea is an admission of the essential elements of the offence,
2. the nature and consequences of the plea, and
3. that the court is not bound by any agreement made between the accused and the prosecutor.
iv. R v Senior: the procedure by which an individual admits criminal liability involves three steps:
1. a guilty plea is entered;
2. there is acceptance of the plea; and
3. the conviction is recorded.
v. R v Denis: If an accused denies guilt, then a guilty plea should NOT be entered (s. 606 (2)).
1. Need to have the requisite (1) mens rea and (2) actus reus, and (3) must admit guilt to enter a
guilty plea.
2. If the accused fails to admit the above three, then the lawyer CANNOT enter a guilty plea.
vi. Conditions of a Guilty Plea that must be met for it to be Valid:
1. it must be voluntary;
2. it must be unequivocal, and
3. the accused pleading guilty must be informed as to the nature of the allegations and
ramifications of a plea.
vii. The Order of Trial:
viii. Criminal trials are held either in the lower Provincial Court or in the Superior Court of Justice.
ix. Which court the trial is held depends on the offence the accused has been charged with.
1. Superior Court of Justice = more serious offences (before a judge alone or a judge and a jury
together).
2. Preliminary hearing is granted if it is going to be held in the Superior Court of Justice (aka more
serious offence).
a. A preliminary hearing (“trial before trial”) is to establish if there is enough evidence to
send the case to trial.
b. Evidence is examined to determine if the case can proceed to trial.

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 x. Commencement of Trial and Opening Statements:
1. Arraignment – reading of charges.
2. Guilty Plea – accused can enter their guilty plea (prove beyond a reasonable doubt the accused
is guilty).
3. Present Case – Crown and defense present their cases; Crown usually goes first. Once the Crown
is finished its opening and closing statement, then will the defense go (can change based on the
Trial Judge’s decision).
xi. Presentation of the Crown’s Case:
1. Crown must present evidence that proves the charges against the accused.
xii. Presentation of the Defense’s Case:
1. After the Crown closes its case, the defence presents its evidence.
a. It is open to the accused to apply for a directed verdict of acquittal.
2. Not sufficient evidence provided by the Crown = directed verdict.
3. Sufficient evidence provided by the Crown = defense must defend the charges.
4. Accused CAN be crossed-examined (cannot be held against him if the accused chooses not to
testify).
xiii. Dismissing Charges/Directed Verdict:
1. Defence can request the judge to dismiss the charges where the Crown does not present
sufficient evidence to prove guilty.
2. If the judge agrees, defence does not present evidence, and the case is dismissed.
a. A directed verdict is “made at the closing of the Crown’s case but before the defence is
to call any evidence, requesting the dismissal of the case on the basis that the essential
elements of the offence are NOT made out”.
xiv. Reopening the Crown’s Case:
1. Once the defence has finished calling all of its evidence, then the trial will proceed to closing
arguments.
2. Crown should present all their evidence before the defense is called.
3. Trial judge can “reopen a case” by asking for more evidence.
a. Reason to reopen a case = if the accused will be prejudiced in making a defense.
4. Must be new evidence in that the Crown could not have been foreseen the evidence and it is in
the best interests of justice.
xv. Rebuttal Evidence:
1. Rebuttal evidence is allowed where the defence has raised some new matter or defence which the
Crown has had no opportunity to deal with and which the Crown or the plaintiff could not
reasonably have anticipated.
xvi. Reopening the Defense’s Case:
1. Defense can also reopen the case (more of a time concern, since defense only presents at the
end).
2. The Court has discretion in deciding whether the defence should be allowed to reopen its case.
xvii. Testifying:
1. Witness must take the stand and must tell the truth (they take an oath).
xviii. Addresses to the Jury:
1. Crown and the defence address the jury.
xix. Closing Arguments by Counsel:
1. If the defence has not called evidence, then the Crown argues first, but if the defence has called
evidence, then it argues first.
2. The Crown must abstain from making or expressing personal opinion, using inflammatory and
incendiary language and attacking the integrity of the opposition.
xx. Charging the Jury:
1. As soon as both sides have argued, if the trial is a jury trial, then the judge will provide the jury
with instructions. These instructions are typically called “charge to the jury”.

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 xxi. Recharging the Jury:
1. When a judge re-charges after submissions from counsel, the same conditions apply to the
original charge.
2. The re-charge will merely be seen as part of the charge and the inquiry will be the jury has been
suitably and properly instructed.
3. Mistake = jury recharged.
xxii. Jury Deliberations:
1. Jury must be isolated when they deliberate (sequestered).
2. The jury must return with a unanimous decision, that is, either to find the accused guilty or find
the accused not guilty and acquit the accused.
xxiii. Instructions During Deliberations:
1. The judge has the capability of discharging the jury and ordering a new trial in the event there is
a deadlock (cannot reach a unanimous decision).
xxiv. Rendering a Verdict:
1. Jury announces it is ready and they have reached a verdict.
2. This announcement is executed by the jury foreman.
xxv. Jury Secrecy:
1. Section 649 of the CC makes it an offence for anyone present in the jury room to leak or disclose
any information regarding the jury’s deliberations.
xxvi. Jury Questions:
1. Jurors are allowed to submit inquiries to the court and counsel during the deliberations.
2. If a question that a juror ask is not straightforward or clear, then the onus is on the judge to seek
clarification prior to offering a response.
xxvii. The Presumption of Innocence and the Ultimate Standard of Proof
1. The right to be presumed innocent until proven guilty (s. 11 of the Charter).
2. The Crown must prove, BEYOND A REASONABLE DOUBT, that an accused is guilty.
a. This means that the Crown must ensure that the judge or jury is satisfied beyond a
reasonable doubt as to the guilt of the accused/defendant.
xxviii. R v Lifchus [1997]: reasonable doubt is logically related to the evidence and facts available.
1. What should be avoided when explaining reasonable doubt (RD) to the jury?
a. RD should not be described as an “ordinary” concept.
i. Not the same standard of proof that they would apply to decisions they make
in their everyday lives.
b. RD is also not based on “moral certainty.”
i. Jurors may think that they are entitled to convict if they feel “certain”, even if
the Crown has failed to prove its case beyond a reasonable doubt.
c. The word “doubt” should be avoided other than in relation to RD itself.
xxix. R v Starr [2000]: The standard ‘beyond a reasonable doubt’ did not necessitate proof of an absolute
certainty.
xxx. Held: The Supreme Court held that the instructions provided by the trial judge were lacking in that they
failed explain that the standard of reasonable doubt has special and unique legal importance.
1. The standard requires a significantly elevated quantum of proof when compared to the
balance of probabilities standard.
xxxi. R. v. J.H.S. [2008]: The stepfather was charged with sexually assaulting his stepdaughter. The two parties,
the accused, and the complainant, had different versions of the events.
xxxii. Issue: whether the alleged events took place?
xxxiii. Held: It is for the Crown counsel to prove beyond a reasonable doubt that the events alleged in fact
occurred.
1. It is not for [the accused] to prove that these events never happened.
2. If you have a reasonable doubt whether the events alleged ever took place, you must find him not
guilty.

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 xxxiv. Burdens:
1. R v Oakes [1986]: This case established the renowned Oakes test = an examination of the
limitation’s clause (section 1) of the Charter that enables reasonable limitations on rights and
freedoms through the legislation IF it can be “demonstrably justified in a free and democratic
society”.
a. When the Oakes test is engaged, the plaintiff/appellant must prove that it is entitled to a
right.
i. An applicant or complainant bears the initial burden of proving they are
entitled to a particular right.
2. R v Cinous [2002]: The “Air of Reality” Test – A defence should be put to a jury IF, AND ONLY
IF, there is an evidential foundation for it.
a. A trial judge must thus put to the jury all defences that arise on the facts, whether or
not they have been specifically raised by an accused, but he has a positive duty to keep
from the jury defences lacking an evidential foundation – OR AIR OF REALITY.
xxxv. Contempt of Court: Conduct or actions of an individual that disobey, rebel, disrespect or belittle the
authority or dignity of a court.
1. Difference between criminal contempt of court and civil contempt.
a. Criminal Contempt: an individual’s failure to obey and fulfill an order of the court (i.e.,
more serious).
i. Punitive in nature – used to deter future contempt.
b. Civil Contempt: sanctions that are meant to compel the person committing contempt to
adhere with the court order (i.e., less serious).
xxxvi. Mistrials: a mistrial can arise where “a trial is unfair, or when the trial has the appearance of unfairness,
viewed by a well-informed, reasonable person considering the whole of the circumstances” (R v Khan).
xxxvii. Ordering a mistrial after a verdict is render can happen but VERY RARE.
1. R v Gunning [2005]: It is a basic principle of law that the jury is to decide whether an offence
has been proven on the facts. The judge is entitled to give an opinion on a question of fact but
not a direction.
a. Judge and jury must be kept distinct and separate.
2. R v Hamilton [2004]: A judge is allowed to utilize wisdom, experience, logic and common sense
gained from his or her own experiences when judging witness credibility.
a. However, a judge must evade judging trustworthiness and credibility on the grounds
of generalizations and without using evidence.
3. To ensure impartiality, roles within the court must be separated (i.e., judge cannot take on the role
of a witness, advocate, the function of the jury in a jury and judge case, etc.).
xxxviii. Role of the Prosecutor: The function of the prosecutor is to ensure justice is executed and this involves
providing credible and relevant evidence to the trier of fact.
1. The role of the Prosecutor is not to secure a conviction.

2. Krieger v Law Society of Alberta [2002]: Krieger, the Crown, was given the DNA results, before
the preliminary hearing, which insinuated a different person and not the accused.
a. Kriegar told the defence the results would not be ready by the preliminary inquiry date.
Kriegar’s mistruth was discovered.

29
 b. “Kriegar was reprimanded and removed from the case after a finding that the delay was
unjustified”.
3. Held: It is the role of the prosecutor to promote justice and failing to disclose relevant documents
does not achieve this.
4. R v Nixon [2011]: The Court held that the Crown’s decision clearly was an act of prosecutorial
discretion. It was established in Krieger that prosecutorial discretion is only reviewable for abuse
of process.
a. Two classes or categories of abuse of process (Charter, s.7):
i. Prosecutorial conduct affecting the fairness of trial; and
ii. Prosecutorial conduct that “contravenes fundamental notions of justice; and
thus undermines the integrity of the judicial process.”
b. A stay of proceedings will only be appropriate when:
c. “(1) the prejudice caused by the abuse in question will be manifested, perpetuated or
aggravated through the conduct of the trial, or by its outcome; and
d. (2) no other remedy is reasonably capable of removing that prejudice”.
5. R v Babos [2014]: A stay of proceedings for an abuse of process will only be warranted in the
clearest of cases.
6. R v Anderson [2014]: The Court found that there is no constitutional obligation on the Crown to
take into account the status of an Aboriginal
7. Held/Rule: The Court emphasized that the discretion of the Crown is “entitled to considerable
deference and should not be second-guessed”.
6. GETTING TO THE TRIAL: THE CRIMINAL INVESTIGATION
a. Police Powers
i. The police are there to enforce the law.
ii. The core-activities of policing include:
1. Prevention of crime
2. Enforcement of laws
3. Assisting victims
4. Keeping and maintaining public order
5. Responding to emergencies
iii. Two main sources of police powers: (1) common law and (2) statutes.
iv. Sources of Police Powers:
1. The Canadian Constitution, 1867 and 1982:
a. Provinces obtain a significant responsibility for public policing.
b. Parliament does not obtain a main constitutional responsibility for policing.
c. The Charter plays a role as well:
i. If a criminal process violates the Charter, it may be struck down (unless
justified under s.1)
ii. The Charter offers remedies (section 24) to those who have had their Charter
rights infringed because of an investigation or government action.
2. The Criminal Code:
a. The chief source of police power.
b. Police = deterring crime/crime prevention.
c. General Search Warrant:
i. A search warrant enables a person to enter a location, such as a home, and
take (i.e., seize) specified evidence (i.e., specified within the warrant).
v. Historical Common Law Powers:
1. Search Incident to Arrest: CL power is intended to ensure the safety of citizens, protect and
secure evidence from destruction and enable the discovery of relevant evidence, as per Cloutier v
Langlois.
2. This common law power (search incident to arrest) was expanded in Caslake.

30
 a. Police powers to obtain evidence was altered and expanded.
b. Caslake broadened the scope to permit a search incident to ensure safety of both the
police and citizens, to secure and protect evidence from destruction by the accused
(i.e., arrestee) and for the purpose of discovering evidence that is relevant to the
criminal offence being committed or that can be utilized at the accused’s trial.
3. Search of Private Dwelling: Without a warrant, a home could not be searched and was
considered “prima facie unreasonable”.
4. As R v Feeney holds, “generally a warrant is required to make an arrest in a dwelling”.
5. HOWEVER: R v Landry [1986]:
a. The Court quoted Eccles v Bourque, and held that:
b. A peace officer has authority at common law to enter private premises to effect an
arrest without warrant pursuant to s. 450(1)(a) of the CC if he has reasonable and
probable grounds to believe that an indictable offence has been committed or is about
to be committed, and if two further criteria are met:
i. The peace officer must have reasonable and probable grounds to believe that
the person sought is on the private premises; and
ii. he must make a proper announcement of his presence and purpose before
entering.
c. R v Feeney [1997]: Exception to the search warrant requirement –
i. In cases of hot pursuit, the privacy interest MUST give way to the interest of
society in ensuring adequate police protection”.
ii. Therefore, a hot pursuit was held to be an exception.
6. Common Law Ancillary Powers Doctrine:
a. This doctrine enables police officers to interfere and intrude on a person’s liberty
and/or privacy during the lawful execution of their duty, subject to the following
conditions being fulfilled, which come from the Waterfield test:
i. The Police are acting in the execution of their duties under common law or
statute (actions are within the scope of the law); and
ii. The conduct constitutes a justifiable interference with individual liberty or
privacy (actions were reasonably necessary).
vi. Powers of Search and Seizure:
1. Searches that are warrantless are unreasonable = searches that are not authorized by law
(warrants) violate s. 8 of the Charter.
2. Whether there has been an unreasonable search requires looking at 2 questions:
a. Was what occurred a search, and if so,
b. Was the search unreasonable?
3. All section 8 cases follow the same basic structure:
a. It is mandatory to determine if the police investigative strategy or tactic constituted a
“search”.
b. This inquiry is answered by establishing if the person had a “reasonable expectation of
privacy”.
c. If they did not, then the police technique was not in fact a “search” and as such, s. 8
could not have been infringed.
4. Is the Search Unreasonable?
a. To determine whether a search is reasonable and whether Charter s. 8 is engaged, you
must first ask the following 2 questions (2 STEPS):
i. IS THIS A SEARCH? If yes, move on to the 2nd question (reasonable
expectation of privacy test from Edwards).
ii. WAS THE SEARCH UNREASONABLE? (Collins Test).

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b. STEP 1: SEARCH
c. Edwards held that “a search can be unreasonable where it intrudes on a person’s
reasonable expectation of privacy”.
i. If there is a reasonable expectation of privacy = the investigation constitutes
a search.
ii. If there is NOT a reasonable expectation of privacy = there is NO search.
d. Summary of the Edward’s Test:
e. Two distinct inquiries must be made in relation to section 8:
i. Has the accused a reasonable expectation of privacy.
ii. If he has such an expectation, was the search by the police conducted
reasonably.
1. A reasonable expectation of privacy is to be determined on the
basis of the totality of the circumstances.
f. STEP 2: REASONABLENESS
g. You must apply the COLLINS test; this involves satisfying 3 conditions.
h. If any three of the conditions/steps are not fulfilled (i.e., fail), then the search is
unreasonable.
i. R v Collins: A search will be reasonable if it is authorized by law if the law
itself is reasonable and if the manner in which the search was carried out is
reasonable.
i. Was the search authorized by law?
i. Was there a warrant or not?
ii. Warrant must include:
1. The physical location that is to be searched must be accurately and
specifically identified (house, does not include backyard, must
specifically state it).
2. List the physical objects that are being searched for (illegal drugs to
be searched).
j. If there is NO WARRANT = WARRANTLESS SEARCH
i. A warrantless search or seizure is prima facie unreasonable (Hunter).
k. When a WARRANTLESS search is justified:
i. Search incident to arrest:
ii. Police are entitled to search a person when there is a lawful arrest (previously
discussed).
iii. “Strip searches incident to arrest may...be lawful, but such searches should
only be carried out where the police have reasonable grounds to conduct the
search for the purpose of discovering weapons or seizing evidence related to
the offence for which the detainee was arrested and demonstrate an urgency
for such a search being conducted in the field” (Golden).
iv. Safety searches:
v. “A search incident to a lawful arrest must be based on reasonable grounds to
believe that the search is necessary for a valid objective related to the
reasons for the arrest such as safety of the arrestee or officer” (Cloutier;
Caslake).
vi. Waterfield test: “the police was acting within their general scope (i.e.,
execution of their duties under common law or statute) AND the conduct
constitutes a justifiable interference with individual liberty or privacy”.
vii. R v MacDonald [2014]: duty to protect the public good (safety).
viii. Police officers also have a common law power to conduct searches incidental
to investigative detention.

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 1. However, as held in Mann, Clayton and MacDonald, this is only
justified if the police have a reasonable ground to believe his safety
is at risk (or the safety of others).
ix. Sniffer dog search:
x. Police power to use sniffer dogs where police have a “reasonable suspicion”
that evidence of an offence will be discovered.
1. If a dog is sniffing you and barking, the police would have a justified
reason to search you.
xi. Warrantless searches authorized by consent:
1. No violation of s.8 if individual waives his right to privacy.
a. Must be fully informed and voluntary.
2. Fully informed means that “a person must be provided with
sufficient information to make the preference meaningful” (Borden).
3. To be voluntary, the person providing the consent must have had a
genuine option or choice in providing it (Godbout).
xii. Exigent (Urgent/Damage/Loss) Circumstances:
xiii. Impractical to obtain a warrant, then a search that is warrantless may be
reasonable (Grant).
xiv. Urgency would be defined as something that requires immediate police action
to preserve evidence or ensure the safety of the public (Paterson).
xv. Plain View Doctrine:
xvi. A police officer may “validly seize clear evidence of wrongdoing that is in plain
view provided that the officers are otherwise lawfully engaged in the execution
of their duties”.
l. Warrantless search powers have been deemed to be reasonable in a variety of
contexts:
i. Administrative and regulatory searches (McKinlay Transport; Comite
paritaire; Thomson Newspapers).
ii. Border searches (Simmons; Monney; Jacques).
iii. Roadside searches (Hufsky).
5. Powers of Detention
a. Section 9 of the Charter: “Everyone has the right NOT to be arbitrarily detained or
imprisoned.”
b. Two questions must be asked:
i. Was there a detention (apparent), and if so,
ii. Was the detention reasonable?
c. Examples of Detention:
i. Traffic stops
ii. Police roadblocks
d. R v Grant [2009]: The test to consider whether a reasonable person in the individual’s
circumstance would believe they were being detained is an objective test (i.e., from the
perspective of a reasonable person).
e. R v Lee [2019]: Five racialized men were in a backyard when three police officers
arrived. Two police entered without a warrant or consent.
i. The police questioned the men and asked for proof of their identities.
ii. One officer questioned the accused and asked him what was in the bag he
was carrying.
iii. The accused fled, was pursued, and arrested; the police found on him a
firearm, drugs, and cash.
f. Rule: The police entry into the backyard effected a detention that was both immediate
and arbitrary.

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 i. Psychological detention by the police can arise in two ways:
1. the claimant is legally required to comply with a direction or demand
by the police; or
2. a claimant is not under a legal obligation to comply with a direction
or demand, but a reasonable person in the subject’s position would
feel so obligated and conclude that they were not free to go.
g. The accused’s detention began the moment the police entered the backyard and made
contact with the young men.
h. Test: Grant Lines of Inquiry
i. First factor — the circumstances giving rise to the encounter as they
would reasonably be perceived by the individual —
1. detention arising prior to the officer’s inquiry about the contents of
the accused’s satchel.
ii. Second factor — the nature of the police conduct —
1. a detention arose as soon as the police officers entered the
backyard and started asking questions.
iii. Third factor — the characteristics or circumstances of the individual
1. there was a detention from the moment the officers entered the
backyard and started asking questions.
i. Held: in view of the application of the three Grant lines of inquiry, admission of the fruits
of the police conduct would bring the administration of justice into disrepute, and as
such, the evidence must be excluded.
j. R v Stairs [2022]: Someone dialed 911 to report a man hitting a woman in a vehicle.
Police officers found the vehicle parked in the driveway of a house. They knocked on the
front door, declared their presence, but no one answered. Out of fear for the woman’s
safety, they entered the house.
i. Police entered and saw a woman coming from the basement with bruises and
cuts. The man was arrested.
ii. After the arrest the police was doing a clearing search of the basement.
iii. The police saw a clear container and a plastic bag in plain view containing
methamphetamines.
k. The accused was charged with possession of a controlled substance for the purpose of
trafficking, and with assault and breach of probation.
l. Accused argued that the search and seizure was violation of his s. 8 Charter rights.
m. Rule: The common law standard allows the police to search a lawfully arrested person
and to seize anything in their possession or the surrounding area of the arrest to
guarantee the safety of the police and the arrested person, prevent the person’s
escape, or provide evidence against them.
n. It authorizes a search of the person arrested and the surrounding area of the
arrest when:
i. (1) the arrest is lawful;
1. The arrest was lawful, as he was abusing his wife.
ii. (2) the search is incidental to the arrest, such that there is some reasonable
basis for the search connected to the arrest and the search is for a valid law
enforcement purpose, including safety, evidence preservation, or evidence
discovery; and
1. It took place right after the arrest and the police merely conducted a
visual scan of the living room area to ensure that no one else was
present and that there were no weapons or hazards.

34
 iii. (3) the nature and extent of the search are reasonable.
1. The spatial scope of the search was appropriate: the living room
was part of the surrounding area of the arrest, it appeared to be a
common living room space, and the police engaged in the most
cursory of searches, which was the least invasive possible.
o. Held: The search of the living room incident to arrest did not violate the accused’s s. 8
Charter right, and the evidence from the living room search was therefore properly
admitted at trial.
p. R v Spencer [2014]: Reasonable Explanation of Privacy
i. Police discovered an individual had been using an Internet Protocol (IP)
address to access child pornography.
ii. Without a warrant, the police obtained from the Shaw (internet provider) the
individual’s subscriber data.
iii. With the data that Shaw provided the police, the police obtained a warrant to
search Spencer’s home and seize his computer.
iv. The police found child pornography images and videos.
q. Issue: whether the accused had a reasonable expectation of privacy?
r. Rule: If a great deal of information is exposed, this would imply the person would more
likely have a subjective expectation of privacy. Further, the more sensitive the data
revealed, the higher the likelihood a subjective expectation of privacy will exist.
s. R v Collins: A search will be reasonable if it is authorized by law, if the law itself is
reasonable and if the manner in which the search was carried out is reasonable.
t. Under the Collins Test:
i. Was there a search?
1. Yes, there was a search (through Shaw).
ii. Was the search unreasonable?
1. Yes, the search was unreasonable since there no exigent
circumstances, nor where their actions reasonable under the law.
u. Held: The search violated the Charter. If it were not for the subscriber information, the
warrant could not have been acquired.
i. “The police, however, were acting by what they reasonably thought were
lawful means to pursue an important law enforcement purpose”.
v. NOT admitting the evidence would bring the administration of justice into dispute (thus,
ADMIT evidence).
w. R v Marakah [2017]: Whether text messages have a reasonable expectation of privacy
and should be protected against unreasonable search or seizure.
x. Rule: Establishing If It Was Objectively Reasonable to Expect Privacy
i. The place where the search occurred whether it be a real physical place or a
metaphorical chat room.
ii. The private nature of the subject matter, that is whether the informational
content of the electronic conversation revealed details of the claimant’s
lifestyle or information of a biographic nature.
iii. Control over the subject matter.
y. Held: The accused did have a reasonable expectation of privacy in the text messages.
z. The search was unreasonable and violated Mr. Marakah’s right under s. 8. It follows
that the evidence is prima facie inadmissible.
aa. R v Mills [2019]: A police officer posed online as a 14-year-old girl with the intent of
catching Internet child lurers.
i. M sent the “girl” sexually explicit messages and arranged a meeting in a park,
where he was arrested and charged with child luring.

35
 ii. The officer used screen capture software to create a record of his online
communications with M as evidence for trial.
bb. Trial Judge Held: The messages were “private communications” as per in CC s. 183
and that prior judicial authorization to capture the messages under CC s.184.2 was
required from when the police had determined that M had a potentially inappropriate
interest in a minor.
cc. Rule: To Claim s. 8’s Protection
i. An accused must show a subjectively held and objectively reasonable
expectation of privacy in the subject matter of the putative search.
ii. Objective reasonableness is assessed in the totality of the circumstances,
along four lines of inquiry.
iii. The first three inquiries are:
1. an examination of the subject matter of the alleged search;
2. a determination as to whether the claimant had a direct interest in
the subject matter; and
3. an inquiry into whether the claimant had a subjective expectation of
privacy in the subject matter.
4. Whether the subjective expectation of privacy was objectively
reasonable having regard to the totality of the circumstances.
iv. The first THREE lines of inquiry support M’s claim to an expectation of privacy.
1. M intended to have a one-on-one online conversation.
2. M had a direct interest in the subject matter, and he expected the
communications to be private.
v. Based on the FOURTH inquiry:
1. Adults cannot reasonably expect privacy online with children they do
not know.
dd. Held: Section 184.2 does not apply in the instant case because a communication made
when there is no reasonable expectation of privacy cannot constitute a “private
communication” for the purposes of s.183.
i. No s. 8 violation occurred in this case.
7. GETTING TO THE TRIAL: TAKING CONTROL OVER THE ACCUSED
a. Securing Jurisdiction over the Accused and Interim Release
i. Gaining Jurisdiction over the Accused:
ii. A court must have jurisdiction over an accused.
iii. Jurisdiction means the ‘legal authority’ of the court over the subject matter, time and location and person
in the proceeding.
iv. R v Hape: Principle of Territoriality (Objective and Subjective)
1. Under the objective territorial principle:
a. A state may claim jurisdiction over a criminal act that commences or occurs outside the
state if it is completed, or if a constituent element takes place, within the state, thus
connecting the event to the territory of the state through a sufficiently strong link.
2. Under the subjective territorial principle:
a. Refers to the exercise of jurisdiction over an act that occurs or has begun within a
state’s territory even though it has consequences in another state.
v. Statue of Limitations:
1. For indictable offences = no statute of limitations exists.
2. For summary conviction offences = the limitation period begins running on the date the offence
was committed.
a. Summary offences are barred 2 years after this date of commission.
3. Hybrid offences = depends on how the Crown elects to proceed, either summarily or by way of
indictment.

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 vi. The Arrest
vii. There are two types of arrest:
1. With a warrant: you go to a justice who signs off on an information.
2. Without a warrant: citizen’s arrest; when someone is in the act and a police officer makes an
arrest; etc.
viii. Arrest with a WARRANT
1. A warrant is one of the ways to secure an accused’s attendance in court.
2. If a court issues a warrant, it may be executed in Canada (anywhere) UNLESS, it is issued by a
provincial court judge or a justice.
3. A warrant authorizes a peace officer (section 514 (2)) to:
a. Arrest the name person; and
b. Bring that person “before a judge in the territorial division in which the warrant was
issued”.
ix. Arrest WITHOUT A WARRANT
x. Peace officers may arrest a person without a warrant.
xi. The circumstances wherein a peace officer may make an arrest without having obtained a warrant are
listed in section 495(1):
1. There are reasonable grounds a person HAS committed an indictable offence;
2. There are reasonable grounds a person is ABOUT TO COMMIT an indictable offence;
3. A person IS committing an indictable offence; OR
4. A person has a WARRANT out for his/her arrest.
xii. If the person is in the act of committing a summary offence, then the peace officer has limited authority to
arrest that person.
xiii. In Hayes, a common law power does exist permitting peace officers to make a warrantless arrest in the
situation where the peace officer holds an honest and reasonable belief that there is an infringement of the
peace.
xiv. The appropriate test to establish whether the arrest was lawful involves two steps:
1. Did the police officer, from a subjective perspective, have a reasonable and probable grounds for
arresting the suspect; and
2. Could a reasonable person in the position of the officer conclude that there were reasonable and
probably grounds for arrest.
xv. “Citizen’s Arrest:”
xvi. Section 494 (1) ANYONE may arrest WITHOUT a warrant:
1. (a) a person whom he finds committing an indictable offence; or
2. (b) a person who, on reasonable grounds, he believes:
a. (i) has committed a criminal offence, and
b. (ii) is escaping from and freshly pursued by persons who have lawful authority to arrest
that person.
xvii. Rights on Arrest:
1. The police have a duty beyond simply reading an individual’s their rights; they must also do their
due diligence to ensure that the person understands the rights.
2. Summary of Rights Upon Being Arrested/Detained:
a. Right to be informed why you are being detained or arrested.
b. Right to be searched in a reasonable manner.
c. Right to remain silent.
d. Right to speak with a lawyer.
3. Compelling Appearance Without a Warrant:
a. There are multiple ways in which a person can be compelled to attend court.
b. To compel an appearance, one of the following three steps must be taken:
i. serve an appearance notice on the accused;
ii. arrest the accused; or

37
 iii. lay a charge and issue a warrant or summons (appear in court AFTER
someone is charged).
4. Laying Charges:
a. An individual will go from being “suspect” to the “accused” once an information is laid
(before someone is laid, they are only a “suspect.”).
b. This can occur before OR after an arrest is made by a peace officer.
5. What if Charges have NOT been laid? How do you compel appearance (pre-charge)?
a. Peace officer can compel a person to appear in court BEFORE there is a laying of
information if the officer decides that individual should be prosecuted.
b. Done through an arrest (when a police officer makes an arrest, they can decide whether
to lay a charge or not).
c. CC sets out that an appearance notice, promise to appear to or recognizance may be
used.
d. Appearance notices are used for summary or hybrid offences.
e. Failure to appear is an offence.
f. Officers do not typically want to arrest individuals for less serious offences.
6. When Charges HAVE been laid (post-charge):
a. Charges laid = accused is kept in custody, UNLESS granted bail.
i. Can be released with charges or without.
b. Summons issued = appearance in court, OR warrant for their arrest.
i. Summons issued first, then warrant should be considered.
7. Bail Hearing:
a. Arrested and not released right way then = bail hearing.
b. Bail Hearing: whether accused should be released from jail until trial.
c. Crown must demonstrate why the accused must stay in custody.
i. Ladder Approach: start with the least onerous (least strict) measure (i.e.,
bail without conditions); the Crown must ‘argue its way up’.
1. Conditions of Bail: If the accused is charged with possession, then
weekly drug tests may be an imposed condition. Or if the accused
was caught selling drugs to students at a school, then a condition
may be that the accused cannot go within 500 metres of any school
property.
2. The Crown must establish why an order without any conditions is
NOT adequate or sufficient (most minimal, less strict, to the most
onerous).
d. An undertaking without conditions enables an accused to be released as long as the
accused gives his word (promise) that he will attend court when necessary (Crown must
justify why additional conditons must be added).
8. Denial of Bail:
9. An accused may be denied bail on the following grounds:
a. It is necessary to ensure a court appearance;
b. It is necessary to ensure public safety; and
c. It is “necessary to maintain confidence in the administration of justice” (St-Cloud).
10. Reverse Onus:
a. The accused will be the one who bears the burden of proving why they should be
released back into the community (the Crown having to demonstrate why the accused
should be kept in jail).
i. This is called a “reverse onus”.
b. A reverse onus will occur in the following situations:
i. The accused was already on a release (i.e. granted bail) and is now facing
new, unrelated charges in criminal law (i.e. repeat offender now).

38
 ii. The accused was already on a release and failed to adhere to the bail
conditions that were imposed (i.e. charged with a failure to comply, section
145 previously discussed).
iii. The accused was charged with a very serious offence(s).
11. The Hearing: The Crown may make an application to adjourn the hearing = the judge has the
discretion to delay a bail hearing up to three days.
a. This is done with the consent of the accused.
b. Can consider hearsay evidence = informal proceeding.
xviii. R v Lafrance [2022]: L (indigenous) involved in the death of another person.
1. L was taken to the police station and interviewed for over 3 hours.
2. Three weeks later, police arrested L for murder.
3. L wanted to call his father so that he could call Legal Aid to get an attorney, but the police denied
the request and they kept pushing for answers until L confessed to killing the victim.
xix. Rule: Test for Detention
xx. Three factors to consider:
1. Whether the police were providing general assistance; maintaining general order; making general
inquiries regarding a particular occurrence; or singling them out for focused investigation.
2. The nature of the police conducts throughout the encounter (language, words, physical contact
and duration, effects the perception of a reasonable person).
3. Consider the individual’s age, physical stature, minority status and level of sophistication.
a. How a reasonable person of a similar racial background would perceive the interaction
with the police.
b. In evaluating interactions between Indigenous people and the police, courts must be
alive to:
i. (1) the relational aspect between the police and Indigenous persons,
characterized as it has been by an overwhelming power imbalance and history
of discrimination; and
ii. (2) the resulting possibility that their interactions would reasonably be
perceived by Indigenous persons as depriving them of choice to cooperate.
xxi. Held: All three factors weigh decisively in favour of finding that L was detained.
1. The police detained L on the day of the execution of the warrant and then breached s. 10(b) by
failing to inform him of his right to counsel.
2. The police committed another breach of s. 10(b) on the day of the arrest by refusing to allow L to
contact a lawyer in circumstances which showed that his initial conversation with Legal Aid was
insufficient for the purposes of s. 10(b).
xxii. Therefore, the accused’s confession should be excluded since the serious violations of the Charter by
the police outweigh the impact on society’s interest in the truth-seeking function of the criminal trial
process.
xxiii. R v. St-Cloud [2015]: Involved a bail hearing, wherein the detention order was restored (i.e. bail was
denied).
xxiv. Rule: The three grounds for continued detention
1. It is necessary to ensure a court appearance.
2. It is necessary to ensure public safety.
3. It is necessary to maintain confidence in the administration of justice.
xxv. This case focused on the third ground.
xxvi. Four circumstances to consider for the third factor:
1. Apparent Strength of the Prosecution’s Case
a. Physical evidence may be more reliable than a statement made by a witness, and
circumstantial evidence may be less reliable than direct evidence.
b. The existence of ample evidence may also reinforce the apparent strength of the case.

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 2. Gravity of the offence
a. The maximum and minimum sentence, if any, for the offence.
3. Circumstances Surrounding the Commission of the Offence, Including Whether a Firearm Was
Used
a. Whether the offence was a serious, violent, or a heinous/hateful crime or if the victim was
vulnerable person, such as a child, elderly, or someone with a disability.
4. Fact That the Accused Is Liable for a Potentially Length Term of Imprisonment
a. Mandates subjective assessment (compared to the gravity of the offence which entails an
objective assessment).
xxvii. Held: If the crime is serious or very violent, if there is overwhelming evidence against the accused and if the
victim or victims were vulnerable, pre-trial detention will usually be ordered.
1. Therefore, in this case, the above three factors were met, including the four additional
circumstances required for the third factor, which permitted the accused to be continually detained,
and for the judge to deny his bail.
xxviii. R v Antic [2017]: Antic was arrested and charged with multiple drug and firearms criminal offences.
1. At his bail hearing, he was denied release, and made a review for the detention order.
xxix. Rule: “impose cash bail on an accused person if they or their sureties have reasonably recoverable assets
and can pledge those assets to the satisfaction of the court. Cash bail should be relied on only in exceptional
circumstances in which release on a recognizance with sureties is unavailable.”
xxx. Held: the court found that the bail review judge was in error, as he imposed one of the most onerous forms
of release without applying and adhering to the ladder principle.
1. Cash bails should not set higher than reasonably necessary.
2. Should not be imposed in circumstances where the accused or their sureties have substantial
recoverable assets.
8. GETTING READY FOR TRIAL
a. Disclosure and Production
i. Right of an accused to disclosure of all relevant information that is in the possession or control of the
Crown.
ii. EXCEPTION: information that is privileged.
iii. Right of disclosure = accused to properly defend themselves.
1. Disclosure by the Crown includes:
a. Incriminating & blameworthy evidence (inculpatory)
b. Shows innocence, favourable to the accused (exculpatory)
2. Third Party Records – not fruits of the of the investigation.
a. Under control of persons, rather than by the police or prosecution (production).
iv. R v Stinchcombe [1991]:
1. All relevant information must be disclosed, both that which the Crown intends to introduce into
evidence and that which it does not, and whether the evidence is inculpatory or exculpatory.
2. All statements obtained from persons who have provided relevant information to the authorities
should be produced, even if they are not proposed as Crown witnesses.
v. IMPORTANT TO REMEMBER: Crown Discretion to NOT DISCLOSE
1. There are two categories wherein the Crown can utilize this discretion.
a. Relevancy – arguing the subject matter or information is completely irrelevant to the
case.
b. Privilege – the duty to respect the rules of privilege and the identity of informers.
vi. The Crown’s discretion is reviewable, as per Stinchcombe, due to the fact that by failing to disclose
information the Crown may be in breach of the accused’s s. 11 Charter rights.
vii. If information is found to be irrelevant = then the Crown DOES NOT have to disclose the information.
viii. R v Connor [1985] (Medical Records Held by a Third-Party):
1. Unless the actions of the Crown (i.e., nondisclosure) impact the trial in a negative manner, then
the conduct of the Crown will not necessarily result in a stay of proceedings.

40
 2. A stay of proceedings will only be granted if the fairness of the trial was affected by the Crown’s
actions (failing to disclose information).
3. An adjournment is simply a postponement of the proceedings – used to give the defence time to
review the information.
ix. Rule: If the problem of nondisclosure cannot be fixed by merely disclosing the information to the defence
and giving them time to review it, then a stay of proceedings will be a suitable remedy.
x. Production of Records in the Possession of Third Parties:
1. To initiate the production procedure, the accused must bring a formal written application
supported by an affidavit setting out the specific grounds for production.
2. Notice must be given to third parties in possession of the documents as well as to those persons
who have a privacy interest in the records.
xi. For Disclosure Purposes: merely relevant to the facts of the case and useful to the defence.
xii. For Production Purposes: relevancy standard is higher, reasonable possibility that the information is
logically probative to an issue at trial or the competence of a witness to testify.
1. Factors to Consider for Production Record Evidence:
a. Necessary for the accused to make their defence.
b. Probative value of the record.
c. Reasonable expectation of privacy in the record.
d. Whether the record would be premised on any discriminatory belief or bias.
e. Prejudice to the accused’s dignity, privacy or security of the person that would be
prompted by production of the record.
xiii. R v McNeil [2009]: Officer was convicted on multiple drug charges.
1. This misconduct led to him being disciplined and charged criminally.
2. The accused, in a preliminary motion, sought production of documents relation to the misconduct.
3. The Court of Appeal held that no expectation of privacy existed (no O’Conner-type procedure was
mandated).
4. Production of the criminal investigation files was ordered.
xiv. Rule(s):
xv. Breach of Section 7: the accused is obliged to demonstrate that there is a reasonable possibility that non-
disclosure impacted the outcome at trial OR the fairness of the trial procedure (R v Dixon).
1. Two-limb test to establish if a breach of disclosure impacted a full answer and defence:
a. the breach of disclosure impacted the result of the trial (in other words, if the jury
had the additional information, would it have created or instilled a reasonable doubt as
to the guilt of the accused?)
b. the non-disclosure impacted the overall fairness and justness of the process of the
trial (i.e., would have the disclosure greatly assisted the defence in their preparation
and enabled them to prepare a stronger argument?).
2. The duty of the defence is to demonstrate a “reasonable plausibility”.
a. The defence does not need to show that the information/evidence would have in fact
made a difference.
xvi. Privileged Information: information in the hands of the Crown are privileged and not subject to disclosure,
UNLESS there are appropriate grounds.
1. McClure sets out the test for disclosure of privileged materials:
a. There must be NO OTHER SOURCE of the information sought (i.e., the information
cannot be obtained from any other source or person).
b. The accused is not able to raise a reasonable doubt without the information (i.e., the
accused has no other means of raising a reasonable doubt).
i. This second prong relates to the accused’s innocence (“innocent-at-stake
exception).

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 2. Types of Privileged Information:
a. Informer Privilege (“Class” Privilege):
i. Almost absolute, blanket confidentiality.
ii. If exposes the informer in any way = privileged.
b. Solicitor-Client Privilege:
i. Information, communications and documents that are between a lawyer and
his or her client are protected by solicitor-client privilege.
ii. For a claim of solicitor-client privilege to be made, three conditions must
be satisfied:
1. The communication must be between the lawyer and client;
2. The communication must have been for the purpose of function of
providing or seeking legal advice; and
3. The communication was intended and presumed to be confidential
in nature.
c. National Security Privilege:
i. Sensitive or potentially injurious information in a criminal proceeding without
the consent of the Attorney General of Canada, or a court order is privileged.
ii. If the disclosure meets the test in McClure, the Attorney General must be
notified.
iii. If no injury or damage will result = DISCLOSURE IS PERMITTED
3. R v. JJ [2022]: J and R, challenged the constitutionality of ss. 278.92 to 278.94, arguing that
Parliament had jeopardized three fundamental rights guaranteed to accused persons under the
Charter, namely:
a. the right to silence and the privilege against self-incrimination under ss. 7 and 11(c);
b. the right to a fair trial under ss. 7 and 11(d); and
c. the right to make full answer and defence under ss. 7 and 11(d).
4. Rule: To establish that a law violates section 7, a claimant must follow two analytical steps – they
must demonstrate that:
a. (1) the impugned provisions result in the deprivation of life, liberty or security of the
person; and that
b. (2) the deprivation violates principles of fundamental justice.
5. Held: Sections 278.92 to 278.94 of the CC DO NOT violate sections 7 and 11(d) of the Charter.
a. These sections were held to be constitutional in their entirety.
b. Preliminary Inquiries
i. If the Crown has a “prima facie” case.
ii. Tests the Crown’s case, and if the evidence is not strong enough, it will not go to trial.
iii. Purpose:
1. To establish whether there is adequate and sufficient evidence to “set the matter down for trial
before a Justice of the Superior court.
2. NCA Exam Question:
a. “Will the accused be committed to stand trial?”. If you encounter such an inquiry,
be aware that this is specifically addressing whether the Crown has a strong enough
case (i.e., is there sufficient evidence) for it to be set down for trial.
3. Purpose = protect accused from needless and improper exposure to a public trial where there is
insufficient evidence for its continuation.
iv. Commencement:
1. Proceeding by indictment = accused entitled to a preliminary hearing (not obligatory).
a. RECALL: when charged with an indictable offence, the accused has the option of one
of the modes of trial:
i. before a provincial court judge;
ii. before a superior court judge without a jury;

42
 iii. before a superior court judge with a jury
v. What Happens at the Preliminary Hearing:
1. The Crown will call its evidence; this is usually via witnesses who will take the stand and testify.
2. The preliminary hearing is a chance for the defence to evaluate and assess the case against the
accused.
3. The court will decide either to send the case to trial OR discharge the accused (the accused is
basically acquitted).
vi. Scope:
1. Matters that should be considered when considering whether an amendment should be made to
the indictment or a count in it. This section authorizes a judge to make the amendment(s) at the
preliminary stage.
vii. Presence of the Accused:
1. Not mandatory for the accused to be present at the preliminary inquiry.
viii. Multiple Accused and Multiple Counts:
1. Preliminary inquiry if two or more accused, in situations wherein there are two or more persons
are jointly charged in an information and one or more of them make a request for a preliminary
inquiry, a preliminary inquiry must be held with respect to all of them.
2. If there are multiple accused persons (not jointly charged), they are entitled to individually
request a preliminary inquiry.
ix. Adjournment:
1. Adjourn an inquiry by changing the place of hearing, if desirable to do so, if a witness is absent,
the inability of a witness who is ill to attend at the place where the justice usually sits or for any
other sufficient reason.
x. Address:
1. Accused must be read the paragraph contained in s. 541(2) of the CC before the justice will hear
any witness called by the accused who is NOT represented by counsel.
2. If the accused, who does not have a legal representative, replies to the address, the response
must be written down and “shall be signed by the justice and kept with the evidence of the
witnesses...”
xi. Publication Bans:
1. Preliminary inquiries are open to the public UNLESS there is a public ban.
xii. Inappropriate Questioning:
1. An examination or cross-examination of a witness may be immediately stopped if a justice is of
the opinion that it is “abusive, too repetitive or otherwise inappropriate.”
xiii. Taking of Evidence:
1. Evidence of witnesses is taken “under oath” and recorded.
2. Witnesses of the Crown are heard first and cross-examined by the accused.
3. A judge cannot call witnesses other than the witnesses requested by the accused and the Crown.
xiv. Evidence of the Accused:
1. Although, the preliminary inquiry is meant for the Crown to prove it has a meritorious case, the
accused is permitted, if the justice allows it, to provide evidence.
xv. R v Arcuri [2001]: Arcuri was charged with first degree murder. At the preliminary inquiry, the case of the
Crown was based wholly on circumstantial evidence.
1. At the preliminary inquiry, two witnesses were called to the stand and provided ‘exculpatory’
testimonies (i.e., evidence that showed the accused was innocent; “freed from blame”).
2. The preliminary inquiry judge refused the accused’s argument that he must weigh the evidence.
xvi. Issue: whether the preliminary inquiry judge erred in rejecting to weigh the Crown’s evidence against the
accused’s evidence (i.e., not balancing evidence from both parties).
xvii. Rule: The duty of the preliminary inquiry judge is equal in terms of analyzing the evidence of the Crown and
the accused.

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 1. If the Crown produces all direct evidence on all of the elements (actus reus and mens rea) =
accused will stand trial.
xviii. If the Crown’s evidence is mainly circumstantial evidence = the judge must weigh ALL the evidence,
inclusive of the defence’s evidence.
xix. The judge must conduct an “air of reality” test = ask whether a reasonable jury properly instructed could
find the accused guilty.
c. The Jury Trial
i. The Criminal Code offers multiple methods of trial (i.e., trial by provincial judge, trial by superior court judge
alone, and trial by superior court judge with a jury).
ii. The jury selection process entails three stages:
1. Assembling the jury roll (i.e. list of all eligible jury members in the area).
2. From the jury roll selecting a jury panel, also known as an array.
3. From the jury panel choosing the trial jury.
iii. These stages are regulated by a combination of federal and provincial legislation.
iv. Provincial Legislation Jury Selection Procedures – Creating the Jury Array:
1. Section 626 of the CC stipulates that jurors must be qualified in accordance with the laws of the
province.
2. If there is no intentional exclusion of any specific or particular group and reasonable efforts have
been executed to include all eligible individuals, then representativeness will be fulfilled.
v. Criminal Code Jury Selection Procedures – Choosing the Jury from the Jury Array:
1. Mechanics of Selecting Jurors:
a. 12 jurors can go as low as 10 or high as 14.
b. There are now only TWO MECHANISMS by which a jury array member can be removed or
excluded from the jury, that is, EXEMPTIONS and CHALLENGES.
c. Bill C-75: the Crown and the defence could exclude a specific number of jurors without
any justification or explanation.
vi. Exemptions:
vii. Trial judge can excuse jurors for any three reasons:
1. personal interest in the matter to be tried;
2. relationship with the judge, prosecutor, accused, counsel for the accused, or a prospective
witness; and
3. personal hardship or other reasonable cause.
viii. Challenges for Cause:
ix. The CC lists the grounds on which a juror can be challenged for cause.
1. Prejudices that affect jurors:
a. Specific prejudice
i. (Beliefs and attitudes about the specific case that may impact the impartiality
of the juror);
b. Generic prejudice; and
i. (Comprises of stereotypical attitudes and thoughts about the accused, victims,
etc.)
c. Conformity prejudice
i. (“When a juror might feel influenced by strong community feelings about an
expected outcome”).
x. When challenge for cause is permitted, the first juror, the accused determines whether to challenge for
cause before the Crown, and from that moment on they switch (alternate) who goes first.
xi. R v Williams [1998]: The accused was an aboriginal who pleaded not guilty to a robbery charge; he
elected a jury trial.
xii. Issue: whether “the evidence of widespread bias against aboriginal people in the community raises a
realistic potential of partiality”.
xiii. Rule: Both the Crown and the defence are permitted to challenge for cause on the basis of partiality.

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 1. Potential jurors are assumed to be impartial and “this presumption must be displaced before they
can be challenged and questioned” (must prove a candidate is NOT indifferent).
xiv. Judges are granted a wide degree of discretion when it comes to managing and controlling the challenge
process and as such, should allow challenges if there is a realistic possibility that individuals with racial bias
who are incapable of setting aside this bias are within the jury pool.
xv. CC mandates two stages:
1. (1) the first stage is the inquiry before the judge to establish if challenges for cause should be
allowed.
a. At this stage, the question is whether a realistic potential or possibility for partiality
exists; and
2. (2) if the judge allows challenges for cause, the second inquiry is based on the specific challenge.
a. The question here is whether the juror is able to set aside their bias and “act as an
impartial juror”.
xvi. Held: When it comes to racial prejudice, the court held that “where doubts are raised, the better policy is
to err on the side of caution and permit prejudice to be examined”.
xvii. R v Find [2001]: Accused was charged with 21 counts of sexual offences against children.
1. Prior to jury selection, he applied to challenge potential jurors for cause, arguing the charges
against him gave rise to a possibility that some jurors might be unable to try the case against him
impartially and solely on the evidence before them.
2. The trial judge rejected the application. The accused was tried and convicted.
xviii. Rule: The Court held the nature of the charge (sexual offences involving children) did not entitle the right to
challenge prospective jurors for cause on the grounds of partiality.
1. R v Williams Test:
a. (1) that a widespread bias exists in the community; and
i. Jurors to decide in an unfair/prejudicial manner.
b. (2) that some jurors may be incapable of setting aside this bias.
i. Bias must be sufficient enough to exist in the community.
2. “If in doubt, the judge should err on the side of permitting challenges”.
xix. Held: “Although crimes arouse deep and strong emotions, one cannot automatically equate strong
emotions with an unfair and prejudicial bias against the accused.
1. Jurors are NOT expected to be indifferent toward crimes.”
xx. R v Yumnu [2012]: The appellants became aware of jury vetting.
1. Jury vetting consists of “inquiries conducted by the police, at the behest of the Crown Attorney’s
office, as to whether potential jurors had a criminal record or whether they were otherwise
‘disreputable persons’ who would be undesirable as jurors”.
xxi. The Crown used the data they obtained by the police to make challenges but none of this information was
shared to the defence.
xxii. Held: The Crown breached its duty of disclosure to the defence in failing to disclose the jury vetting
procedure it executed.
1. It was held that the failure to disclose was serious; however, it had no bearing on the actual
composition of the jury, nor did it influence or affect the result of the trial or the overall fairness of
the process of the trial.
xxiii. R v Kokopenace [2015]: The accused was an Aboriginal who was convicted of manslaughter.
1. The accused’s counsel discovered that there may have been dilemmas with the inclusion of
Aboriginal on-reserve residents on the jury roll.
2. This implied that the representativeness of the jury may have been unfair and unjust.
xxiv. Rule: Representativeness of the jury is NOT the ‘ultimate composition’ of the jury, but the process used
to compile it.
1. A fair opportunity will be provided when the state makes reason efforts to:
a. compile the jury roll using random selection from lists that draw from a broad cross-
section of society, and

45
 b. deliver jury notice to those who have been randomly selected.
2. If this test is met, then it meets the representativeness obligations.
xxv. Held: the accused in the case did not establish that the jury roll was compiled or created in a many that
violated his Charter rights.
xxvi. R v. Chouhan [2021]: Jury convicted Chouhan on first degree murder.
1. He appealed his conviction, in part on the basis that the trial judge erred in ruling that the
abolition of peremptory challenges was constitutional and that it applied retrospectively to his
case.
xxvii. Held: The Court further ruled that if any accused had selected trial by jury prior to September 19, 2019,
they had a right to use the challenges during jury selection, even if the selection took place after this date.
d. Pre-Trial Motions
i. After the preliminary hearing and before a criminal case goes to trial, the Crown and defence will typically
appear before the court and make pre-trial motions (made before the actual trial).
ii. Pre-trial motions are simply arguments used by both parties to set the boundaries of the trial. They are
meant to solve preliminary legal issues before the trial starts.
1. Example:
a. A motion to supress or exclude evidence.
b. Changing of venue.
c. Publication bans.
d. Severing counts.
iii. Application to Change Venue
1. Trials are usually held in the region or area that the offence was committed.
2. Requested where there is a widespread prejudice/bias in the community and the dilemma cannot
be resolved by simply providing direction and instructions to the jury.
3. The onus is on the accused to establish the reasons as to why the venue must be changed
(accused bears the burden).
iv. Fitness for Trial
1. A court may order an assessment of the mental condition of the accused, if it has reasonable
grounds to believe that such evidence is necessary to determine (a) whether the accused is unfit
to stand trial.
2. For an accused to demonstrate that he or she is unfit to stand trial, they must prove the
following:
a. (1) they suffer from a mental disorder/condition; and
b. (2) they are incapable of conducting a defence before a verdict is made or by virtue of
their mental disorder, they are not capable of comprehending the nature of the
proceedings or are not able to communicate with their counsel.
v. Different Types of Pre-Trial Motions
1. Summary Judgment:
a. The facts of the case aren’t in dispute; consequently, the court orders a judgment
without embarking on a full-blown trial.
2. Motion to Dismiss:
a. A party argues the case should be dismissed based on a lack of jurisdiction, lack of
evidence or for a number of other reasons.
3. Exclusion of Physical Evidence:
a. If evidence is acquired illegally or beyond the scope of a search warrant, then a party
may argue that this evidence should be excluded from the trial (not admissible).
e. Trial Within a Reasonable Time Applications
i. S. 11(b) of the Charter states: “Any person charged with an offence has the right to be tried within a
reasonable time”.
f. R v Jordan [2016]: Jordan was charged in December 2008 and his trial ended February 2013.
i. Due to the delay, Jordan brought an application under the Charter, s.11(b), seeking a stay of proceedings.

46
 ii. The court held the delay was unreasonable and Jordan’s Charter right (11(b)) was violated.
g. Rule: “At the heart of this new framework is a presumptive ceiling beyond which delay – from the charge to the
actual or anticipated end of trial – is presumed to be unreasonable, unless exceptional circumstances justify it”.
i. The court set the boundaries for the presumptive ceiling:
1. Cases tried in provincial court = 18 months.
2. Cases tried in superior court = 30 months.
ii. Exceptional circumstances include:
1. They are reasonably unforeseen or reasonably unavoidable; and
2. They cannot reasonably be remedied.
h. The burden is on the defence to show that the delay is unreasonable:
i. it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and
ii. the case took markedly longer than it reasonably should have.
i. Held: The 5.5 months were due to the accused are not counted when calculating the presumptive ceiling.
Nonetheless, this still left 44 months, which greatly exceeded the 30-month ceiling.
i. Consequently, a stay of proceedings was entered.
j. R v Cody [2017]: The trial was scheduled to end on January 30, 2015. The accused was charged on January 12,
2010. This was a five-year duration.
i. The total calculated delay was about 60.5 months.
ii. From this amount, 13 months were deducted due to Cody’s waiver.
iii. Two periods of time were also deducted as ‘defence delay’:
1. “the delay resulting from Cody’s first change of counsel (1 month); and
2. the delay resulting from Cody’s recusal application (2.5 months).
iv. The 60.5 months minus the 13 months waived by Cody and the extra 3.5 months (1 month + 2.5 months)
= 60.5 – 16.5= 44 months.
1. This 44-month delay exceeded the 30-month ceiling established in Jordan.
k. Rule: “once the presumptive ceiling is exceeded, the burden is on the Crown to rebut the presumption of
unreasonableness on the basis of exceptional circumstances.”
l. Held: For exceptional circumstances, “the following delays should be deducted as discrete events:
i. the appointment of Cody’s former counsel to the bench (4.5 months) and part of the delay flowing from the
McNeil disclosure issue that arose (3 months).
ii. The net delay is...36.5 months”.
1. This exceeds the ceiling and as such, section 11(b) is breached.
9. SENTENCING
a. General Principles of Sentencing
b. CC dictates whether there is a maximum or minimum sentence for the particular crime.
i. Purpose of Sentencing
1. Protect society and to implement preventative measures.
ii. General Principles of Sentencing
1. Start with the max/min sentence term then tailor that term based on the general principles and
case law.
2. R v Priest [1996]: The trial judge in this errored by not considering and taking into account
mitigating factors.
a. The accused had no prior record (first time offender).
b. Moreover, he confessed to the offence, returned all the stolen objects and plead guilty
early on.
c. The trial judge was obliged to give effect to the mitigating factors when imposing a
sentence.
iii. Procedure
iv. Court should sentence an offender when reasonable and practicable.

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v. Types of Sentences
1. Incarceration
2. Section 743.1(1) states that a person shall be sentenced to imprisonment in a penitentiary if,
they are sentenced to imprisonment for:
a. Life
b. A term of 2+ years; OR
c. Two or more terms of less than 2 years each that are to be served one after the other
and that, in the aggregate, amount to 2 years or more.
3. Conditional Sentence of Imprisonment
4. If a person receives a sentence of less than two years, then the court may order that the person
serve the sentence in the community.
5. This conditional sentence will be subject to conditions imposed under section 742.3 if several
criteria’s are fulfilled.
a. R v Proulx [2000]: “a conditional sentence is aimed at both punitive AND rehabilitative
aspects, whereas probation is aimed at rehabilitation.”
6. Probation and Community Service
7. Where a person is convicted of an offence, a court may, having regard to the age and character
of the offender, the nature of the offence and the circumstances surrounds its commission,
a. (a) if no minimum punishment is prescribed by law, SUSPEND the passing of sentence
and direct that the offender be released on the conditions prescribed in a probation
order; OR
b. (b) in addition to fining or sentencing the offender to imprisonment for a term not
exceeding two years, direct that the offender complies with the conditions prescribed in
a probation order”.
8. Fines
9. If someone is convicted of a summary offence, they are liable to a fine of no more than $5000 or
to a term of imprisonment not exceeding six months OR both.
10. Absolute or Conditional Discharges
11. Where an accused pleads/found guilty, other than an offence for which a minimum punishment is
prescribed by law or an offence punishable by imprisonment for fourteen years or for life, and it is
in the best interests of the accused and not contrary to public interest, the accused be
discharged absolutely or on the conditions prescribed in a probation order made under
subsection 731(2).
12. Recognizance Orders
13. A recognizance is also referred to as a “peace bond”. If you sign a recognizance (or peace
bond), you will be mandated and obliged to adhere to specific conditions.
14. Restitution
15. When a criminal offender is convicted OR discharged, the court may order the offender to
recompensate another.
16. Victim Surcharges
17. An offender may be ordered to pay a victim surcharge, in addition to any other punishment
imposed.
18. Amount of Surcharge (s. 737) (1)):
a. (2) Subject to subsections (2.1) and (3), the amount of the victim surcharge in respect
of an offence is
i. (a) 30% of any fine that is imposed on the offender for the offence; or
ii. (b) if no fine is imposed on the offender for the offence,
1. (i) $100 in the case of an offence punishable by summary
conviction, and
2. (ii) $200 in the case of an offence punishable by indictment.

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 19. Sentencing Aboriginal Offenders
20. Imprisonment should be a very last resort (s.718.2(e)):
a. (e) all available sanctions, other than imprisonment, that are reasonable in the
circumstances and consistent with the harm done to victims or to the community should
be considered for all offenders, with particular attention to the circumstances of
Aboriginal offenders.
21. Punishment of Organizations
22. When punishing an organization or company, look at s. 718.12.
23. Parole
24. Parole is the early release of an offender who undertakes/agrees to adhere and obey certain
conditions.
c. R. v M. (C.A.) [1996]: (Life Imprisonment)
d. Where imprisonment is available as a penalty for a particular offence, “the Code sets maximum terms of incarceration
in accordance with the relative severity of each crime”.
e. A legislative or judicial sentence that is grossly disproportionate, in the sense that it is so excessive as to outrage
standards of decency, will violate the constitutional prohibition against cruel and unusual punishment under section
12 of the Charter.
f. Totality Principle:
i. requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to
ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender.
g. Held: The Court of Appeal varied the sentence the trial judge imposed. The Supreme Court criticized this variance
commenting that “absent an error in principle, failure to consider a relevant factor or an overemphasis of the
appropriate factors, a court of appeal should ONLY intervene to vary a sentence imposed at trial if the sentence
is demonstrably unfit”.
h. R v Gladue [1999]: The accused was an aboriginal woman. She was sentenced to three years in jail after pleading
guilty to manslaughter for the killing of her CL spouse.
i. Mitigating Factors:
1. The accused’s family was supportive, she attended alcohol counselling sessions and she
enhanced her education.
2. There was clear provocation on the part of the husband (i.e., his insulting behaviour and
remarks).
3. The accused also had a hyperthyroid condition; this caused her to overact to emotional and
heated circumstances.
4. Lastly, she demonstrated signs of regret and remorse and plead guilty.
ii. Aggravating Factors:
1. The remarks the accused’s said that indicated she intended the harm (i.e., he’s going to get it).
2. She stabbed him twice.
3. She was the aggressive one in the relationship and was not intimated by the victim (i.e., she
couldn’t claim she was being abused by him and was scared for her life).
iii. Aboriginal status not considered.
1. The judge decided that there were no special circumstances arising from the aboriginal status
of the accused and the victim. Both were living in an urban area off-reserve and not “within the
aboriginal community as such.”
iv. Rule: When sentencing Aboriginal offenders, judges should consider all available sanctions other than
imprisonment and to pay particular attention to the circumstances of aboriginal offenders.
1. This is because of their:
a. (a) the unique systemic or background factors which may have played a part in bringing
the particular aboriginal offender before the courts; and
b. (b) the types of sentencing procedures and sanctions which may be appropriate in the
circumstances for the offender because of his or her particular aboriginal heritage or
connection.

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 v. If no alternative to jail exists, then the judge is to meticulously and carefully consider the length of the jail
term.
1. Usually is less for an Aboriginal offender than a non-Aboriginal offender.
2. However, does not AUTOMATICALLY mean that the punishment will be reduced because they are
Aboriginal, other factors must be considered before reducing the sentence.
vi. Held: The court concluded that the sentencing judge erred by not taking into account the Aboriginal status
of the accused simply because she and the victim were living in a region “off-reserve” and not within the
Aboriginal community.
vii. R v Lloyd [2016]: L was convicted of possession of drugs for the purpose of trafficking. Because he had a
recent prior conviction for a similar offence, he was subject to a mandatory minimum sentence of one year
of imprisonment.
1. The Court of Appeal allowed the Crown’s appeal, set aside the declaration of unconstitutionality,
and increased the sentence to 18 months.
viii. Issue: L challenged the mandatory minimum sentence of one year of imprisonment that applied to him.
ix. Rule: The mandatory minimum sentence provision covers a wide range of potential conduct. As a result, it
catches not only the serious drug trafficking that is its proper aim but conduct that is much less
blameworthy. This renders it constitutionally vulnerable.
1. Mandatory minimum sentence provisions that apply to offences that can be committed in various
ways, under a broad array of circumstances and by a wide range of people are constitutionally
vulnerable.
x. Held: The provincial court judge was entitled to consider the constitutionality of that provision. He ultimately
concluded that the mandatory minimum sentence was not grossly disproportionate as to L.
xi. R v Anthony-Cook [2016]: The trial judge rejected a joint submission by applying the “fitness test”. The
court addressed the proper test that should be applied when it comes to joint submissions.
xii. Rule: Joint submissions are when the Crown and defence counsel agree to recommend a particular
sentence to the trial judge, in exchange for the accused entering a plea of guilty — are vitally important to
the well-being of the criminal justice system, as well as the justice system at large. Generally, such
agreements are unexceptional, and they are readily approved by trial judges without any difficulty”.
xiii. Four Possible Approaches:
1. the fitness test (lenient);
2. the demonstrably unfit test;
3. the public interest test (most stringent); and,
a. the approach that treats the fitness and public interest tests as essentially the same.
xiv. The Court stated that it is the public interest test that is the appropriate and proper legal test that should
be applied:
1. Under the public interest test, a trial judge should not depart from a joint submission on
sentence unless the proposed sentence would bring the administration of justice into
disrepute/dishonour or would otherwise be contrary to the public interest.
2. The public interest test best reflects the many benefits that joint submissions bring to the criminal
justice system and the corresponding need for a high degree of certainty in them.
xv. Held: The trial judge employed the fitness test; however, the judge erred by doing this because this test
was far too lenient, and a stricter test should have been applied.
1. The Court concluded that when the proper legal test was applied (the public interest test), it was
clear that the sentence proposed by the parties did not warrant a departure from the joint
submission.

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10. APPEALS AND REVIEW
a. Appeals of Final Decisions and Judicial Review of Interim Decisions

i. Appeals of Indictable Offences

ii. Under s. 675(1)(a) states that an individual can appeal a conviction based on:
1. a question of law alone,
2. on a question of fact,
3. on a question of mixed law and fact,
4. or on any ground of appeal “that appears to the court of appeal to be a sufficient ground of
appeal”.
iii. These bases for appeal pass through a minimum of three “filters”:
1. The first two filters are found in s. 686(1)(a) of the Code.
a. Section 675 delineates the grounds upon which an appeal can be made; the grounds
upon which an appeal can be granted are considerably narrower.
2. The second filter is regarding the primary remaining ground of appeal in s. 675: appeals based
on a question of law.
3. The third filter is based on the fact that even if an appeal satisfies the conditions of s. 686(1)(a),
it may not be granted.
iv. Court of Appeal Powers (Procedural)
v. The powers of the Court of Appeal are listed under s. 683(1). If it is in the interests of justice, the Court of
Appeal may execute any of the seven actions.
vi. Powers of Court of Appeal (General)
vii. Once an appeal is heard by the court of appeal, Court has the power to either allow or dismiss the appeal.
viii. The court of appeal will allow the appeal on the following grounds:
ix. Verdict is unreasonable or is incapable of being supported by the evidence.
x. A wrong decision on a question of law was made by the trial court.
xi. Any basis where a miscarriage of justice exists.
1. What is an Unreasonable verdict?
2. The case of R v Yebes explains what an unreasonable verdict is:
a. “Whether the verdict is one that a properly instructed jury, acting judicially, could
reasonably have rendered.”
i. To apply this test, it is necessary for the court to re-analyze and examine, and
to a certain degree, also re-weigh and evaluate, the impact of the evidence.
3. Wrong Decision on A Question of Law
4. When a judge makes a wrong decision, it is referred to as a “mistake in law”.
a. Examples: throwing out critical pieces of evidence or providing erroneous instructions
to the jury.
5. The mistake must have been so severe, as to cause a wrongful outcome.

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 6. Error of law is different from an error of fact.
a. An error of fact insinuates that the judge had the wrong facts or interpreted the facts
inaccurately.
b. An error of law means that all the right information was in the hands of the judge at
trial, however, the law was not properly or correctly applied.
7. R v Khan [1990]: the judge erred in rejecting the child’s testimony and in placing so much weight
and significance on the age of the child. This was an error of law.
8. Miscarriage of Justice
9. A miscarriage of justice can relate to the process and procedure the judge employed to reach his
or her verdict, OR, to the judge’s conclusion and verdict itself.
10. The Court of Appeal will dismiss the appeal where:
a. The person convicted was accurately and properly convicted on another part of the
indictment or count;
b. The appeal is not in favor of the appellant;
c. No substantial wrong or miscarriage of justice has been committed; and
d. No prejudice was suffered.
xii. The Curative Provision:
xiii. To invoke this provision, the onus is on the Crown to show that any reasonable judge or jury would have
rendered the same verdict.
xiv. Even though an important error of law could have influenced the decision, it would not be appropriate to
reverse the conviction where the evidence is so overwhelming against the accused that it would inevitably
lead to the same result” (Khan).
1. The curative provision MAY ONLY BE USED where the conviction was INEVITABLE (Khan).
xv. Procedural Irregularity:
xvi. The court of appeal to dismiss an appeal on the ground that the court of appeal believes that the appellant
did not suffer any prejudice.
1. An irregularity can be said to constitute a miscarriage of justice when the irregularity was severe
enough to render the trial unfair or create the appearance of unfairness... the emphasis is not
so much on the final verdict and the overall strength of the evidence against the accused, but
rather on the gravity of the irregularity and the effect it may have had on the fairness, or
appearance of fairness, of the trial.
2. The gravity of irregularities which may occur must inevitably be evaluated by courts on a case-by-
case basis (Khan).
3. Crown Appeals
a. The Crown’s right of appeal is far more confined than that of the person being
convicted.
b. Section 676(1) addresses the right of the Attorney General to appeal.
4. Other Appeal Related Matters
a. When can fresh evidence, that was not before the trial court, be admitted in an appeal?
b. R v Palmer sets out the test for the admission of fresh evidence on appeal:
i. If by due diligence, the evidence could have been adduced at trial, then
generally it should not be admitted.
ii. The evidence must be relevant; it must impact a decisive or possibly decisive
matter at trial.
iii. The evidence must be credible; it must be “reasonably capable of belief”.
iv. The situation must be that if the (fresh) evidence was believed and taken into
account with other evidence adduced at trial, then it would have impacted the
result at trial.

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 5. Standard Review:
a. The standard of review is the degree of “deference” given by one court when reviewing
the decision of a lower court.
b. There are two standards:
i. “correctness”; and
ii. “reasonableness”
c. Correctness: the higher court will make its own determination substitute its decision.
i. The higher court will give deference to the lower court and determine whether
its decision was reasonable in the circumstances.
ii. The higher court will not substitute its own decision in this instance.
d. All decisions that are reviewable by a higher court can be viewed as answering one
of the following questions:
i. Questions of law – what is the correct and proper legal test that is applicable?
ii. Questions of fact: what occurred or happened between the parties?
iii. Questions of MIXED law and fact: do the facts satisfy the correct legal tests?
e. If the question at hand is a question of law = standard of correctness.
f. If the question involves one of fact = standard of reasonableness.
6. Duty to Give Reasons:
a. Trial judges are required to provide reasons for the verdict they reach.
b. The Supreme Court has held that there is a duty imposed on the trial judge to provide
reasons in non-jury criminal trials (R.E.M.).
c. When a trial judge gives thorough reasoning for a decision he or she makes, this will
likely expediate the proceedings in an appeal court, as the appeal court will have the
assistance of reviewing the reasons when determining whether an error was made.
Reasons will help paint a picture of the trial judge’s thought process.
xvii. Appeals of Summary Offences
xviii. Summary convictions appeals cannot be made to the Court of Appeal; the court of appeal lacks jurisdiction
to hear summary conviction appeals (Smith).
xix. Appeal To Supreme Court of Canada
xx. An appeal to the Supreme Court can only be made on the basis of a question of law (not fact, or mixed law
and fact).
xxi. To appeal a decision of a court of appeal to the Supreme Court, an applicant must seek leave to appeal
from the court (i.e., ask the court’s permission to appeal).

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